text:
    Steven GOFF, Appellant, v. Etha FOWLER, Respondent.
    No. WD 71825.
    Missouri Court of Appeals, Western District.
    Sept. 14, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.

      F. Russell Peterson and Aaron N. Woods, Overland Park, KS, for appellant.
    James L. Sanders and Allison G. Ross, Kansas City, MO, for respondent.
    Before Division One: THOMAS H. NEWTON, Presiding Judge, MARK PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Steven Goff appeals from the trial court’s grant of summary judgment in favor of Etha Fowler due to the bar of the statute of limitations. Goff contends that the trial court erred in granting summary judgment because: (1) Fowler failed to establish the bar of the statute of limitations; (2) the judgment was improperly based on an unsigned, unauthenticated letter; and (3) Fowler failed to establish when the last settlement payment was made to Goff. We reverse and remand.

Factual and Procedural History

On May 4, 2007, Goff and Fowler were involved in an automobile collision in Overland Park, Kansas. On May 14, 2009, Goff filed a petition against Fowler in Jackson County Circuit Court seeking damages for personal injuries arising out of the collision.

The petition asserts that “K.S.A. 40-275 applies to extend the statute of limitations.” Section 40-275 provides that any advance or partial payment of damages to an injured person predicated on tort liability fixes the period for the limitation for the commencement of a cause of action on the date of the last payment or partial payment made. Kan. Stat. Ann. Section 40-275 (2000). The petition does not allege the factual basis for Goffs assertion that the statute of limitations was extended by section 40-275, or for how long Goff contends the statute of limitations was extended.

Fowler filed a motion to dismiss the petition. Fowler claimed that Goffs personal injury lawsuit is barred by the two year statute of limitations set forth in section 60-513(a)(4). Kan. Stat. Ann. Section 60-513(a)(4) (2005). The motion to dismiss acknowledged that Section 40-275 “applies to extend the statute of limitations in this matter.” However, the motion to dismiss asserted that the last (and only) payment made to Goff was when State Farm Mutual Automobile Insurance Company (“State Farm”) sent a $476.63 check to Goff for repairs to Goffs vehicle on May 9, 2007. A copy of the May 9, 2007 letter purported to have accompanied the property damage check was attached to the motion to dismiss.

Goff responded to the motion to dismiss. Goff contended that Fowler’s attachment of the May 9, 2007 letter to the motion to dismiss required conversion of the motion to a motion for summary judgment under Rule 74.04. Goff attached an affidavit from his counsel stating that “[biased upon conversations with Steven Goff, the documents and information currently available to me I cannot say when the advance payments alleged by State Farm were actually and legally paid.” The affidavit further stated that “[u]sing normal mail and banking standards, legal education, law and experience I can conclude that the advance payment made by State Farm was not paid until after May 14, 2007.” Goff urged that discovery was necessary to determine when State Farm’s payment was made. Goff filed a motion for continuance and extension of time to conduct discovery.

On July 16, 2009, the trial court entered a judgment granting Goffs motion for continuance and extension of time to conduct discovery. The trial court gave the parties sixty days to conduct discovery limited in scope to payments made by Fowler or State Farm to Goff. The judgment directed the parties to file supplemental briefing after the sixty day discovery period.

Goff conducted no discovery during the sixty days provided by the trial court. Fowler filed a supplement to' the motion to dismiss. Fowler pointed out that Goff had not undertaken the discovery he claimed was necessary to support his allegation that section 40-275 of the Kansas Statutes Annotated extended the statute of limitations to at least May 14, 2009. Fowler argued that Goff bore the burden of proving that he came within a claimed exception to the statute of limitations.

Goff filed a supplement to his suggestions in opposition to Fowler’s motion. Goff again claimed the motion to dismiss should be converted to a motion for summary judgment. Goff claimed that since section 40-275 of the Kansas Statutes Annotated “tolls” the commencement of the statute of limitations, Fowler had the burden to demonstrate that the payment from State Farm to Goff was made more than two years before May 14, 2009. Goff claimed that the earlier submitted affidavit from his counsel was sufficient to create a genuine issue of material fact regarding this subject. In further support however, Goff attached his own affidavit advising that he could not “definitively state” when he received the check from State Farm.

In reply, Fowler advised the trial court that she had no objection to treating the motion to dismiss as a motion for summary judgment as requested by Goff. Fowler argued that it was incumbent on Goff to establish facts in the manner required by Rule 74.04(c)(2) sufficient to defeat Fowler’s motion. Fowler thus argued that Goffs mere assertion that Section 40-275 applied to extend the applicable statute of limitations was not sufficient to create a genuine issue of material fact in dispute.

On December 2, 2009, the trial court entered its judgment. The judgment treated Fowler’s motion to dismiss as a motion for summary judgment pursuant to Rule 55.27(b). The judgment granted summary judgment in favor of Fowler. Goff appeals.

Standard of Review

“The propriety of a summary judgment is a question of law that we review de novo.” Peters v. ContiGroup, 292 S.W.3d 380, 386 (Mo.App. W.D.2009) (citing ITT Commercial Fin. Corp. v. MiA-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). We review the record on appeal from a grant of summary judgment in the light most favorable to the non-movant. Id. “We apply the same criteria on appeal as those the trial court uses to determine the propriety of sustaining the motion initially. Summary judgment is appropriate where no genuine issue of material fact exists and the moving party establishes a right to judgment as a matter of law.” Id. (citation omitted).

Analysis

Goff raises three points on appeal. In his first point, Goff contends that the trial court erred in granting summary judgment in favor of Fowler because the statute of limitations is an affirmative defense, and as the moving party, Fowler failed to demonstrate that the last advance payment to Goff was made more than two years before May 14, 2009, the date Goff filed his petition. In his second point, Goff contends that the trial court erred in granting summary judgment because the May 9, 2007 letter from State Farm was unsigned and unauthenticated and did not conclusively establish when payment was last made to Goff. In his third point, Goff contends that Fowler failed to establish that payment was made to Goff more than two years prior to the filing of Goffs petition. We address all three of Goffs points together as each necessarily assumes that Fowler had the burden to establish that section 40-275 of the Kansas Statutes Annotated did not apply to extend the statute of limitations applicable to Goffs claim to a date within two years of the filing of Goffs petition.

The summary judgment movant has the burden of establishing the legal right to judgment from the facts as a matter of law. White v. Zubres, 222 S.W.3d 272, 274 (Mo. banc 2007); State ex rel. Mahn v. J.H. Bern Constr. Co., 255 S.W.3d 543, 546 (Mo.App. E.D.2008). Because the statute of limitations is an affirmative defense, the moving party has the burden of showing that the statute bars the plaintiffs claim. White, 222 S.W.3d at 274. However, once the moving party establishes that plaintiffs claim is barred by the statute of limitations, the burden shifts to the plaintiff to show that he comes within an exception in the statute to avoid the application of the limitations period to the claim. Id.

Goffs claim originated in Johnson County, Kansas, as that is where the collision occurred. Because the cause of action arose in Kansas, Missouri applies Kansas’s statute of limitations through Missouri’s borrowing statute. Section 516.190; Alvarado v. H & R Block, Inc., 24 S.W.3d 236, 241-42 (Mo.App. W.D.2000). Fowler and Goff agree that Goffs claim was controlled by the statute of limitations described in section 60-513(a)(4) of the Kansas Statutes Annotated. Section 60-513(a)(4) prescribes a two year statute of limitations for a personal injury action. The parties do not contest that section 60-513(a)(4) required Goff to file his petition within two years of the May 4, 2007 collision. The petition was filed on May 14, 2009, inore than two years after the collision. The petition on its face shows that Goffs action is barred by the statute of limitations unless an exception applies. Fowler’s motion, therefore, satisfied Fowler’s burden to show that the statute of limitations barred Goffs claim.

The burden then shifted to Goff to prove that his action came within an exception to the statute to avoid the application of the limitations period to his claim. Goff does not contest this general principle. He argues, however, that section 40-275 of the Kansas Statutes Annotated is not an “exception” to the statute of limitations. Instead, Goff claims section 40-275 must be engrafted into the statute of limitations, as it describes when a statute of limitation period commences. Goff thus argues that it was Fowler’s burden to establish that the property damage payment from State Farm to Goff was made more than two years prior to the filing of Goffs petition. Goff cites no authority for his construction of section 40-275 of the Kansas Statutes Annotated.

Goffs argument is without merit. Section 40-275 of the Kansas Statutes Annotated is a tolling statute. Mast v. Kinnard, 29 Kan.App.2d 301, 25 P.3d 158, 159 (2001) (“[W]hen payments are made pursuant to K.S.A. 40-275, the running of the statute of limitations is tolled until the date of the last payment or partial payment.”). Tolling statutes are treated as exceptions to the applicable statute of limitations, as the burden of proving facts sufficient to toll the statute is upon the party asserting that the statute of limitations has been tolled. Roof-Techs Int’l, Inc. v. State, 30 Kan.App.2d 1184, 57 P.3d 538, 547 (2002).

Thus, once Fowler established via un-controverted facts that Goffs personal injury claim was time barred under section 60-513(a)(4) of the Kansas Statutes Annotated, the burden shifted to Goff to establish the presence of a genuine issue of fact in dispute sufficient to prevent the entry of judgment in favor of Fowler as a matter of law. Stated differently, the burden shifted to Goff to establish facts sufficient to show that section 40-275 applied to prevent his claim against Fowler from being time barred. See Graham v. McGrath, 243 S.W.3d 459, 464 (Mo.App. E.D.2007); State ex rel. Malm, 255 S.W.3d at 544-46 (affirming trial court’s entry of summary judgment where collector of revenue’s action to collect delinquent taxes was time barred, shifting burden to the collector to show that she came within an exception to the statute of limitations that would allow her action to proceed); White, 222 S.W.3d at 276 (holding that plaintiffs claim that burden to disprove application of exception to statute of limitations for medical negligence action was on radiologist is not supported by law). Because all three of Goffs points on appeal erroneously presume that Fowler, not Goff, bore the burden to address the application of section 40-275, the points are denied.

Goff suggests in the argument portion of his brief that should we disagree that Fowler bore the burden of establishing how section 40-275 impacted the commencement of the statute of limitations (which we do), we should nonetheless conclude that Goff did enough to create a genuine issue of material fact in dispute sufficient to defeat Fowler’s motion for summary judgment. This argument is not addressed in any of Goffs points relied on and has not been adequately preserved for appeal. Notwithstanding, we will exercise our discretion to determine whether summary judgment should have been granted, as it is apparent that the import of Goffs points relied on, albeit legally misguided, are nonetheless directed toward determining whether the record on appeal, viewed in the light most favorable to the non-movant, supported the entry of summary judgment.

Here, both parties agree with the general principle that section 40-275 applied to extend the statute of limitations applicable to Goffs personal injury claim. Both parties agreed that State Farm made a property damage payment to Goff after the May 4, 2007 collision. Thus, both parties agree that the running of the applicable statute of limitations was tolled up to the date when State Farm’s property damage payment was made. However, it was Goffs burden to present evidence that the date State Farm’s payment was made was less than two years before Goffs petition was filed. “ ‘Statutes of limitation are favored in the law and cannot be avoided unless the party seeking to do so brings himself strictly within a claimed exception.’ ” White, 222 S.W.3d at 276 (quoting Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 19 (Mo. banc 1995)).

Fowler attached a May 9, 2007 letter transmitting payment to Goff for Goffs property damage to its motion to dismiss. Goffs response to Fowler’s motion, argued “upon information and belief’ that the payment from State Farm was “made by law” after May 14, 2007. Goff attached his counsel’s affidavit to the response. However, the affidavit acknowledged that said counsel had no personal knowledge about when the property damage payment was made to Goff. The affidavit expressed counsel’s “opinion” on the timing of payment based on discussions with Goff, a review of unspecified documents, and an opinion about when a letter dated May 9, 2007, might have been received by Goff. The affidavit does not set forth facts as would be admissible in evidence as required by Rule 74.04(e). The affidavit was thus not sufficient to establish a material fact in dispute supported in the manner required by Rule 74.04(c)(1). “In a summary judgment proceeding, the plaintiffs response ‘may not rest on the mere allegations or denials of the party’s pleading.’ ” White, 222 S.W.3d at 276 (quoting Rule 74.04(e)(2)). Rule 74.04(c)(2) required that the Goffs response to Fowler’s motion “support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.” Thus, up through the point of the response to Fowler’s motion, Goff offered nothing more than a bare and non-specific assertion that he had received a payment from State Farm at some time after the accident and an inadmissible opinion from counsel that payment could not have been received more than two years before the petition was filed.

Goffs response to Fowler’s motion did advise the trial court that discovery was required to permit Goff an opportunity to develop the factual information necessary to demonstrate that Goff fell within section 40-275 in a manner sufficient to extend section 60-513(a)(4) to a period within two years of the filing of his petition. Such relief is expressly authorized by Rule 74.04(f) to prevent the premature entry of summary judgment where a party simply has not had the time or opportunity to develop information in the form required by Rule 74.04(c)(1) to combat a summary judgment motion. Though the opportunity to conduct discovery was afforded, Goff failed to take advantage of the opportunity. Goff thus failed to develop the very evidence he conceded he needed, but did not have, to establish that State Farm’s payment to him was within the two year period preceding the filing of his petition.

Goffs supplemental pleading filed after the permitted discovery period offered little new for the trial court’s consideration other than an affidavit signed by Goff. In this affidavit, Goff says in paragraph 4:

I cannot definitively say when the payments were made, when I received the payments, when the payments were deposited or cashed, where the payments may have been deposited or cashed, when the check was paid by State Farm or its agent bank.

However, in paragraph 5 of his affidavit, Goff says, “I did not receive payment within ten days of the collision.” Goff argues that these statements are not inconsistent and, that although he cannot say for sure when he received payment, he can say for sure he did not receive payment within ten days of the collision. Paragraph 5 of Goffs affidavit is a factual statement. It is based on Goff’s personal knowledge. Goffs statement would be admissible in evidence. Thus, Goff’s affidavit complies with Rule 74.04(e), and the assertion of fact in paragraph 5 of Goffs affidavit complies with Rule 74.04(c)(2). Though the reliability of the statement may be subject to challenge, particularly in light of its apparent inconsistency with the immediately preceding statement, rejecting the statement out of hand would require a credibility determination. The trial court is not permitted to make credibility determinations when ruling on a motion for summary judgment. United Mo. Bank, N.A. v. City of Grandview, 105 S.W.3d 890, 898 (Mo.App. W.D.2003).

Goff thus presented information to the trial court in the form required by Rule 74.04(c)(2), albeit by the thinnest of reeds, sufficient to create a material issue of fact in dispute with respect to the specific application of section 40-275 to his case. We can understand the trial court’s hesitation to reward Goffs recalcitrance in failing to take advantage of the opportunity to conduct requested discovery. However, though Goff clearly could have done more to insure that he established an issue of fact in dispute as to a matter on which he bore the burden, we are nonetheless required to conclude that paragraph 5 of his affidavit suffices to cross the bare minimum threshold necessary to prevent the entry of summary judgment.

Conclusion

We reverse the trial court’s judgment and remand this matter for further proceedings consistent with this opinion.

All concur.

      . We observe that Rule 55.27(b) provides that in the event the court is obliged to treat a motion for judgment on the pleadings as a motion for summary judgment, "all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.” Goff has not claimed any error on appeal arising from the trial court's conversion of Fowler's motion to dismiss to a motion for summary judgment or from the fact that the trial court’s formal decision to convert the motion to dismiss was made on the same day final judgment granting summary judgment was entered.

      . All Missouri statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

      . In fact, the "uncontroverted facts” sufficient to establish that Goff’s claim against Fowler was time barred were drawn from the petition itself.

      . Kansas courts have concluded that a property damage payment made to a person injured in an accident is a "payment” or "partial payment” within the scope of section 40-275. Mast, 25 P.3d at 159.

      . Though we acknowledge that Goff claims he needed to conduct discovery to determine whether section 40-275 as specifically applied to his case would have spared his lawsuit from the bar of the statute of limitations, we are puzzled by the information not provided by Goff which would have been within his control, such as his own bank records.

      . At oral argument, Goff's counsel conceded that he did not undertake any discovery because he had asked for 120 days, not 60 days, and was simply too busy. Counsel also conceded that he made the decision not to undertake discovery because he believed it to be Fowler’s burden to disprove the applicability of section 40-275, notwithstanding existing Kansas precedent to the contrary.

      .We are mindful that Goff has also contested when a payment is "made” for purposes of section 40-275. That statute provides, in pertinent part, "[t]hat the period fixed for the limitation for the commencement of actions shall commence on the date of the last payment or partial payment made hereunder.” Kan.Stat.Ann. section 40-275 (emphasis added). Goff argues that "payment made” does not merely mean when a payment is mailed but, at a minimum, means when a payment is both received and successfully negotiated. Fowler believes "payment made” means when a payment is received. We have located no Kansas authority construing this provision of section 40-275. In any event, it would be premature for us to address this issue given the procedural posture of this case.


source: Caselaw Access Project

author: SHERRI B. SULLIVAN, P.J.

license: Public Domain

text:
    David DUVALL, Plaintiff/Appellant, v. Gary TAWNEY and Kevin Jones, Defendants/Respondents.
    No. ED 93886.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 14, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.

      David Duvall, Acting pro se, Madison, MO, for Plaintiff/Appellant.
    Eddie B. Collier II, St. Charles, MO, for Defendants/Respondents.
   SHERRI B. SULLIVAN, P.J.

Introduction

David Duvall (Appellant) appeals from the trial court’s summary judgment in favor of Monroe County Sheriff Gary Tawney (Tawney) and Deputy Sheriff Kevin Jones (Jones) (collectively Respondents). We reverse and remand.

Factual and Procedural Background

On March 10, 2006, Appellant obtained a default judgment against James Ray Max-ey (Maxey) for $200,000. Appellant filed for a writ of execution naming Maxey as the judgment debtor and providing Max-e/s home address and a description of his personal property, to-wit:

Instructions for Service (to be completed by Applicant)
Include applicable instructions such as, name and address of garnishee; description of property; location of bank account for a sequestration, include political subdivision, department, and name and title of disbursing officer:
“James Ray Maxey’s property consists of the residential home, outbuildings, goods, automobiles, trailers, recreational vehicles, automotive tools, construction equipment, firearm weapons, chattels and real estate located at 17852 Monroe Road, 146, Holiday, Missouri 65258.”

The writ of execution was issued on March 13, 2006. Jones went to the Maxey residence to serve the writ. Maxey was not at the residence at the time, but his wife, LueAnne Maxey (Mrs. Maxey) accepted service on his behalf. Jones testified that he mistakenly thought the writ was a garnishment. Jones also stated that Mrs. Maxey declared all the property at the residence was marital property. Jones stated that he accepted Mrs. Maxey’s declaration as the truth, believed he was not authorized to levy any property that someone says is marital, and left without executing the writ or levying any of the property listed in the writ. Jones also affied that he does not remember whether there were any motor vehicles or a boat present on the property. Jones made no further attempt to identify or levy upon Maxey’s property within the 30-day execution period. Tawney never went to the property in execution of the writ or to levy any of the property listed in the writ.

Appellant sued Respondents under Section 513.340, alleging that Respondents neglected or refused to execute the writ. The parties filed cross-motions for summary judgment, and the trial court initially denied both. Appellant filed another motion for partial summary judgment as to the presence of a boat, boat motor, and boat trailer on the property at the time Jones went to the property to execute the writ. The trial court heard that motion, denied it, and issued a judgment granting summary judgment in favor of Respondents, without analysis, but stating that “Tawney and Jones have shown by admissible evidence and reasonable inferences therefrom, not materially contradicted by evidence or inferences, that the petition has no merit against them and that there is no genuine issue of any material fact in dispute with respect [sic] the alleged injury or unjust loss claimed by [Appellant], and that [Respondents] are entitled to judgment as a matter of law.” This appeal follows.

Points on Appeal

In his first point, Appellant contends that the trial court erred in granting Respondents’ motion for summary judgment because Respondents did not file a motion for summary judgment and did not ask the trial court to enter summary judgment in their favor, and the trial court granted Respondents summary judgment based upon their responsive pleadings to Appellant’s motion for partial summary judgment.

In his second point, Appellant claims that the trial court erred in granting summary judgment to Respondents and in overruling Appellant’s motion to alter, vacate and/or amend the judgment based on Respondents’ claim of entitlement to judicial immunity for their neglect or refusal to make any attempt, whatsoever, to execute a facially valid general writ of execution, because judicial immunity applies to those individuals who obey in good faith a judicial order, and in this case Respondents actually neglected or refused to obey the judicial order, i.e., the general writ of execution.

In his third point, Appellant asserts that the trial court erred in granting summary judgment in favor of Respondents on their claim that Appellant failed to show that the property at the Maxey residence was subject to levy pursuant to Missouri law because Appellant presented evidence that Maxey had property subject to levy under the writ of execution at the time Jones served the writ and no attempt was made to levy any property.

Standard of Review

Appellate review of summary judgment is de novo, viewing the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376, 382 (Mo.banc 1993). “The purpose of summary judgment is to resolve cases in which there is no ‘genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.’” Rule 74.04(c)(6); Grattan v. Union Elec. Co., 151 S.W.3d 59, 61 (Mo.banc 2004). A genuine dispute exists where the record contains competent evidence of plausible but contradictory accounts of essential facts. ITT, 854 S.W.2d at 382.

When the trial court does not issue findings of fact and conclusions of law, its judgment will be affirmed if it is correct under any reasonable theory pleaded. Nahn v. Soffer, 824 S.W.2d 442, 444 (Mo.App. E.D.1991).

Discussion

Point I: Availability of Summary Judgment for Respondents

Appellant contends that the trial court improperly treated Respondents’ responsive pleadings as a motion for summary judgment. Appellant is mistaken. The record reveals that Respondents filed their cross-motion for summary judgment on October 2, 2008, in response to Appellant’s first motion for summary judgment. The trial court denied both motions and set the case for trial. Subsequently, upon Appellant’s second motion for summary judgment, the trial court re-heard arguments from both parties and granted summary judgment in favor of Respondents. The trial court did not err in doing so because an order denying a motion for summary judgment is interlocutory, leaving the court the discretion to open, amend, reverse, reconsider, or vacate that order at any point before final judgment is entered. Midwest Crane and Rigging, Inc. v. Custom Relocation’s Inc., 250 S.W.3d 757, 761 (Mo.App. W.D.2008). Accordingly, Point I is denied.

Point II: Judicial Immunity

Appellant’s claim against Respondents is pursuant to Section 513.340, which provides that a sheriff who neglects or refuses to execute a writ is liable for the amount thereof. Specifically, Section 513.340 states:

If any officer to whom any execution shall be delivered shall refuse or neglect to execute or levy the same according to law, or shall take in execution any property or any property be delivered to him by any person against whom an execution is issued, and he shall neglect or refuse to make sale of the property so taken or delivered, according to law, or shall make a false return of such writ, then, in any of the cases aforesaid, such officer shall be liable and bound to pay the whole amount of money in such writ specified, or thereon endorsed and directed to be levied; and if such officer shall not, on the return of such writ, or at the time the same ought to be returned, have the money which he shall become liable to pay as aforesaid before the court, and pay the same according to the exigency of the writ, any person aggrieved thereby may have his action against such officer and his sureties upon his official bond, or may have his remedy by civil action against such officer in default.

[Emphasis added.]

Relying on the italicized statutory language, Appellant asserts that the statute imposes upon the executing officer a non-discretionary mandate. Appellant’s position is supported by State ex rel. and to Use of Dietrich v. Schade, 167 S.W.2d 135 (Mo.App.1943), where, interpreting a sheriffs duty to remit proceeds from the execution of a writ under Section 518.350, the court held chat “when a statute provides what results shall follow a failure to comply with its terms, it is mandatory and must be obeyed.” Id. at 141.

Respondents contend that absolute judicial immunity shields a sheriff who is following a protected judge’s orders from civil liability and allegations of bad faith cannot abrogate said immunity. Conduct that is “intimately associated with the judicial phase” of the judicial process is protected by absolute judicial immunity. White v. Camden County Sheriffs Dept., 106 S.W.3d 626, 633 (Mo.App.2003), citing Burns v. Reed, 500 U.S. 478, 492, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). This immunity extends to a sheriff who is following a protected judge’s orders. Id.

However, common-law immunity is subject to legislative modification. Edwards v. Gerstein, 237 S.W.3d 580, 582 (Mo.banc 2007). State ex rel. Golden v. Crawford, 165 S.W.3d 147 (Mo.banc 2005), involved a Missouri statute that shielded emergency system workers (e.g., 911 dispatchers) from liability except for willful and wanton misconduct or gross negligence. In other words, the statute allowed a cause of action against a worker in such circumstances. The Supreme Court of Missouri held that the statute superseded common law official immunity.

It is clear from the express language in this section that the legislature intended for this statutory immunity to supersede the common law official immunity doctrine for the enumerated individuals and agencies. Section 190.307 provides the shielded entities with a qualified immunity allowing civil liability only in instances where gross negligence can be established.

Id. at 149.

Likewise, Edwards involved a Missouri statute that shielded members of the Board of Chiropractic Examiners from liability except for gross negligence. The statute preserved a cause of action against the members for gross negligence in the performance of their duties. Edwards, 237 S.W.3d at 582. Despite this exception, the defendant board members argued that they enjoyed absolute quasi-judicial immunity. The Supreme Court of Missouri again disagreed, reasoning that “in order to give full effect to [its] plain language ... the statute must be interpreted as superseding the Board’s common law immunity if Board members engage in gross negligence....” Id.

The legislature clearly intended to provide a cause of action in Section 513.340 for negligently or purposefully failing to execute upon a writ of execution, and “any person aggrieved thereby may have his action against such officer and his sureties upon his official bond, or may have his remedy by civil action against such officer in default.” See Section 513.340. When interpreting statutes, courts do not presume that the legislature has enacted a meaningless provision. Edwards, 237 S.W.3d at 581.

Respondents also argue that the common law doctrine of judicial immunity supersedes the statute by virtue of chronology. They believe that Missouri courts adopted the doctrine long after the General Assembly last revised the statute in 1939, in essence suggesting that the statute was judicially repealed and that, unlike Golden and Edwards, no legislative intent to waive immunity can be inferred. Respondents are simply mistaken. Missouri’s recognition of judicial immunity pre-dates the statute. See Pike v. Me-goun, 44 Mo. 491 (Mo.1869). The General Assembly was free to narrow the waiver of immunity that exposes sheriffs to civil liability under Section 513.340 if it so wished.

Based on the foregoing, we find that Appellant is not precluded from asserting his cause of action under Section 513.340 by the doctrine of judicial immunity. Point II is therefore granted but not determinative, because we will affirm the trial court’s judgment if correct on any theory pleaded. Nahn, 824 S.W.2d at 444. As such, we proceed to Appellant’s third point.

Point IIP Availability of Property Subject to Levy

Finally, Appellant asserts that the trial court erred in granting summary judgment for Respondents because a genuine factual dispute exists as to whether there was property subject to levy located at the Maxey residence during the execution period. We agree. There are disputed issues of fact in the record as set forth by the affidavits, answers to interrogatories, statements of uncontroverted facts and responses to statements of uncontro-verted facts, making the trial court’s entry of summary judgment improper.

Appellant alleges that there was nonexempt personal property located at the Maxey residence on March 15, 2006, when Jones went to the residence and served the writ to Mrs. Maxey. Specifically, Appellant claims that he observed a boat, boat motor, and boat trailer, all registered to Maxey alone, on the Maxey property before and after Jones went to the residence. Appellant asserts that Respondents made no attempt, either by negligence or intentionally, to levy upon these items or to identify or levy upon any other available property at the Maxey residence at any time during the execution period, March 15 to April 14, 2006.

Respondents counter that their inaction was lawful because Mrs. Maxey claimed joint ownership of all property located at the residence, and Appellant’s instructions did not specify which personal property at Maxey’s residence belonged solely to Max-ey.

First, the duty of a sheriff to do an act sought by writ of attachment is ministerial according to its terms and does not allow him discretion. State ex rel. Mather v. Carnes, 551 S.W.2d 272, 285 (Mo.App.1977). Therefore, it is not for a sheriff to determine whether or not to take property pursuant to a writ of execution based on a third party’s claims that the property is marital. The cases cited by Respondents in support of their assertion that marital property is not subject to execution involve post-execution judicial proceedings where the court determines whether the property is jointly owned.

Second, Jones also stated that he mistakenly believed that the writ of execution was a garnishment, and therefore he was only required to leave the garnishment with Mrs. Maxey. If Jones’ statement is believed, that raises the issue of why Mrs. Maxey asserted that all of the personal property at the residence was jointly owned by her and Maxey. Additionally, there remains an issue as to Respondents’ initial sworn statements that there were no automobiles or boat or motor owned by Maxey on the property on March 15, 2006. These affidavits were later “supplemented” by Respondents to state that the two officers were mistaken in their previous affidavits that there were no such items on Maxey’s property on the day in question, but rather that Jones “could not recollect” whether there was a boat, motor, or autos on the property on March 15, 2006 and that Tawney had “no information or knowledge” of whether or not on that day there were any automobiles belonging to Maxey or a boat and motor on Maxey’s property.

As set forth above, there are conflicting accounts of what items of property were present on Maxey’s property the day the writ of execution was to be carried out. There are credibility determinations to be made in this case that should be made by the fact-finder, and not determined by summary judgment. The trial court is not allowed to make credibility determinations when considering summary judgment motions. United Missouri Bank, N.A. v. City of Grandview, 105 S.W.3d 890, 898 (Mo.App. W.D.2003). Rather, such matters are for determination following a complete trial. Id. Because the credibility of the evidence is disputed, a genuine issue of material fact on the issue of Respondents’ negligence remains to be resolved. Id.

The sheriff must exercise reasonable diligence in searching for property subject to execution. Taylor v. Wimer, 30 Mo. 126 (Mo.1860). Liability for failing to levy depends on whether the positive or circumstantial evidence establishes that the sheriff knew of property owned by the debtor and subject to execution, or knowledge of facts that “should cause him to make exertions” to find the property. Id.

To preclude the entry of summary judgment, Appellant must set forth specific facts, by affidavits, depositions, or otherwise, showing that there is a genuine issue for trial. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 381 (Mo.banc 1993). A genuine issue exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. Id. In the instant case, the record contains competent materials that evidence competing accounts of whether there was property at Maxey’s home to levy upon and Jones negligently failed to do so under Section 513.340.

For the foregoing reasons, summary judgment was not appropriate in this case. Point III is granted.

Conclusion

Because Respondents are not entitled to judgment as a matter of law, and because there are material facts still in dispute, the trial court incorrectly granted summary judgment. The order granting summary judgment is reversed, and this case is remanded for proceedings consistent with this opinion.

LAWRENCE E. MOONEY, J. and GARY M. GAERTNER, JR., J., concur.

      . All statutory references are to RSMo 2004, unless otherwise indicated.

      . Sections 513.430 and 513.440 set out what items of property are exempt from writ of execution including household furnishings up to $3,000, wedding rings up to $1,500, tools of the trade up to $3,000, motor vehicles up to $3,000, health aids, social security benefits, unemployment compensation, public assistance benefits, veteran's benefits, disability benefits, alimony and child support up to $750, and retirement plans.


author: JAMES EDWARD WELSH, Judge.

text:
    STATE of Missouri, Respondent, v. Spencer Nelson HARDING, III, Appellant.
    No. WD 71531.
    Missouri Court of Appeals, Western District.
    Sept. 21, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.

      Janet M. Thompson, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before LISA WHITE HARDWICK, C.J., JAMES EDWARD WELSH, J, and BRIAN C. WIMES, Sp. J.
   JAMES EDWARD WELSH, Judge.

Spencer Nelson Harding, III, appeals the circuit court’s judgment convicting him of murder in the first degree. He asserts that the circuit court erred and abused its discretion in overruling his motion to exclude and strike the testimony and reports of the State’s DNA analyst and in considering DNA evidence that lacked statistical analyses. He also contends that the evidence was insufficient to convict him of murder in the first degree. We disagree and affirm the circuit court’s judgment.

Viewing the evidence in the light most favorable to the verdict, the evidence established that on October 29, 2005, Molly McWilliams and Harding were at a local drinking establishment in Carrolton, Missouri, called “The Bar.” That evening, the managing officer of The Bar saw McWil-liams and Harding talking to each other inside the bar. Both McWilliams and Harding, stayed at the bar until closing time, which was around 1:15 or 1:30 a.m., on October 30, 2005. After closing, McWil-liams and Harding continued talking to each other outside the bar by Harding’s pickup truck, which was a white Ford pickup truck with a Ray/Carroll sticker that had been taken off the door. Jeremy Dodds, who was also leaving the bar, stopped at Harding’s truck and talked to Harding briefly. According to Dodds, Harding and McWilliams were standing next to the truck with the driver’s door open, and it appeared to him that they were getting ready to get inside the truck.

A local gas station’s video surveillance tape establishes that Harding entered the gas station around 1:40 a.m. and left the station at 1:44 a.m. The surveillance video also shows that Travis Constant entered the gas station at 2:03 a.m.

Sometime after 2:00 a.m., on October 30, 2005, Travis and Kristina Constant were out for a drive, and they saw a white Ford pickup truck parked on the wrong side of the road next to a field where McWil-liams’s body would be discovered a few hours later. The pickup truck had a metal, crisscrossed tailgate, a red gas can in the back, a license plate tied on to the tailgate, and a faded circle with writing on it on the side of the door. The Constants later identified the truck as belonging to Harding.

That morning, at around 8:00 a.m., a farmer discovered McWilliams’s body lying face down in the field. McWilliams’s body was about thirty yards from the road. She had blood in her hair and was wearing a green sweatshirt, blue jeans, and a white sports bra. Grass stains were evident on McWilliams’s clothes, and the placement of those stains suggested that the body had been dragged. In an area covered with blood near the body, the police found a pair of purple underwear and a Budweiser beer can. McWilliams was not wearing underwear under her jeans. McWilliams’s face was bruised, and blood and bruises were on her hands. Some of the wounds on McWilliams’s body appeared to be drag wounds.

An autopsy revealed that the cause of McWilliams’s death was strangulation and blunt trauma to the head. McWilliams sustained three deep lacerations to the back of her head, which were consistent with being struck by some sort of weapon. She also sustained numerous abrasions and contusions to various parts of her body and had a fractured left hand. The examiner concluded that the injuries were inflicted while McWilliams was still alive. The examiner said that McWilliams’s injuries were consistent with being struck multiple times with an object. Although he could not tell if the injuries were inflicted by more than one person, the examiner said that the injuries were consistent with her having engaged in a struggle. The examiner also concluded that McWilliams had been strangled because she had abrasions on both sides of the neck and a fractured hyoid bone. Further, the examiner found a recently inflicted abrasion on McWilliams’s vagina and said that the abrasion was consistent with consensual sex, assault, or rape. He could not make a finding of sexual assault.

On October 31, 2005, the police went to Harding’s residence and found his white Ford pickup truck parked out front. The officers asked Harding to accompany them to the major case squad’s command post so that they could talk to him, and Harding agreed to go with them. At the command post, Officer Benny Sheffield told Harding that he was not under arrest, that he was free to leave at anytime, and that he did not have to talk to the police. The officer also advised Harding of his Miranda rights, and Harding filled out a form waiving his Miranda rights.

During the questioning, Harding told the officers that he had heard about the case on the news and that he thought the police would be coming to talk to him. Harding said that he was not surprised that the police came to see him and that he had intentionally stayed home that day because he thought the police would be coming to talk to him. Harding said that he was the usual suspect when something like this happened. Harding told the officers that he been falsely accused of a rape in Carrollton and that he had spent fourteen months in jail because of that false accusation.

Harding told the officers that he had been at “The Bar” on the night in question, and he volunteered that he had seen McWilliams there. He said that he left the bar between 1:15 a.m. and 1:30 a.m. He said that, as he was leaving, McWilliams asked him for gas money so that she could pay some people to take her home. Harding said that he gave her twenty dollars to get her away from him because he thought McWilliams seemed to be high or on drugs at the time. Harding said that McWilliams gave him a hug as she was leaving. Harding then went to his truck. According to Harding, when he got to his truck, someone had poured beer on his seat and had stolen a pack of cigarettes from his glove compartment. Harding said that he then went to the gas station to purchase cigarettes and then went straight home.

Harding told the officers that he washed the truck seat cover the next day to remove the beer. He also told them that he had washed his jeans and shirt that he had worn that night but said that he was wearing the same sweater that he had worn that night. Harding gave the officers the sweater so that they could test it. Further, Harding told the officers that he was the only person who ever drove his truck and that he only drinks Budweiser beer. He said that McWilliams had never been in his truck. When the officers asked Harding if he had ever engaged in sex or oral sex with McWilliams, Harding replied that he never messed around with her and that McWilliams never “did it” with him. He said that McWilliams had “come on to him” on previous occasions but that he had turned her down.

According to Officer Sheffield, he never told Harding during the interview that it was, in fact, McWilliams that was found dead in the field, but Sheffield noted that Harding kept referring to McWilliams in the past tense. When Sheffield told Harding that he was not sure that it was McWilliams in the field, Harding responded that it would be a shame if it was because McWilliams was someone he “really gave a shit about.”

Harding consented to the officers’ search of his truck and house. During a search of Harding’s truck, officers found a cooler in the bed of the truck. The cooler contained two cans of Budweiser beer. The lot numbers on the beer cans in the cooler matched the lot number printed on the can found in the field near McWil-liams’s body. Authorities also obtained a buccal swab and hair samples from Harding.

Stacey Bolinger, a DNA analyst for the Highway Patrol Lab, examined the interi- or of the truck for possible blood. When she located possible blood stains in the truck, she tested the stains with a chemical called LMG to determine if blood was present. Bolinger identified several areas in the truck that tested positive for blood. Those areas were: the driver’s side interi- or door panel, the driver’s side interior door handle, the steering wheel faceplate, the passenger side floorboard, and the middle seat belt. Because these areas screened positive for the presence of blood, Bolinger swabbed these areas so that DNA tests could be performed. Bolinger also had received the rape kit that the medical examiner had obtained in his examination of McWilliams. Bolinger examined two oral swabs, two rectal swabs, and two vaginal swabs for the presence of semen. Tests on the vaginal swabs and rectal swabs tested positive for semen. Further, Bolinger took swab samples from the mouthpiece of the beer can found in the field to conduct a DNA analysis.

Bolinger then conducted a DNA analysis on the samples she obtained. After amplifying the DNA extracted from the swab of the truck’s steering wheel faceplate, Bol-inger obtained a DNA profile. She determined it was a single source profile, which she could use as a point of comparison. The profile was consistent with that developed from the known standard of McWil-liams. Bolinger also developed a DNA profile from the swab she obtained from the beer can found in the field, which was consistent with the DNA profile developed from the known standard of Harding. For both of those profiles, Bolinger conducted random match probability analyses. According to Bolinger, McWilliams’s DNA profile occurs in only 1 in 14.18 quadrillion people in the Caucasian population, and Harding’s DNA profile occurs in only 1 in 22.4 quadrillion people in the Caucasian population.

Bolinger separated the sperm fraction from the non-sperm fraction for the vaginal swab. She only obtained a partial profile from the minor contributor of the sperm fraction but developed a full DNA profile consistent with Harding for the major contributor. Bolinger conducted random match probability analysis as to that sample. Again, according to Bolinger, Harding’s DNA profile occurs in only 1 in 22.4 quadrillion people in the Caucasian population. Bolinger stated that the major component of the non-sperm fraction for the vaginal swab was consistent with McWilliams. She said that Harding could not be eliminated as a minor contributor to the non-sperm fraction.

Bolinger also re-tested the rectal swabs one year after the initial testing, at the prosecutor’s request. She determined that the major component of the non-sperm fraction was consistent with McWil-liams. She also determined that the sperm fraction from the rectal swab was consistent with being a mixture of at least two individuals. She said that, as to the sperm fraction from the rectal swab, the major component of that profile was consistent with McWilliams and that Harding could not be eliminated as a source of the minor component. Because, however, Bol-inger could not provide random match probability statistics as to those samples, Harding moved to strike Bolinger’s testimony at trial, and the circuit court took the objection with the case.

Bolinger was also able to develop partial DNA profiles from the swabs of the driver’s side interior door handle and the driver’s side interior door panel. The DNA found in these samples consisted of a mixture from at least two individuals. Over objection, Bolinger testified at trial that she could not eliminate Harding and McWilliams as the source of the DNA found on the door panel or door handle. Bolinger also said that she did not perform statistical analyses on these samples. Further, because Bolinger had not reviewed the raw electronic and analyzed data for the samples before trial, she could not testify about the parameters she used for peak detection thresholds.

At the close of Bolinger’s testimony, Harding renewed his objection to strike Bolinger’s testimony because of her inability to answer questions and provide data which he contended violated his right to confrontation and because Bolinger’s testimony lacked statistical data which he contended denied him due process. The circuit court denied the motion and said that it would consider the evidence lacking statistical data., In particular, the court said:

[T]he other DNA evidence, wherein the State did produce evidence of certain frequencies within the population with respect to other DNA evidence, is stronger evidence. And the evidence where the calculation was not done is weaker evidence.
The evidence that does not have the calculation with respect to the frequency probability is not as strong as the other evidence. But being consistent is simply going to be given whatever weight that might have.

Harding waived his right to a jury trial. After the trial, the circuit court found Harding guilty of first degree murder and sentenced Harding to life imprisonment with no opportunity for probation or parole. Harding appeals.

In his first point on appeal, Harding contends that the circuit court erred and abused its discretion in overruling his motion to exclude and strike the testimony and reports of the State’s DNA analyst, Stacey Bolinger, and in considering DNA evidence that lacked statistical analyses. In particular, Harding contends that, because Bolinger refused to answer questions about her conclusions and the methodology she used to review the raw and analyzed electronic data from her DNA testing, his Sixth Amendment right to confront the witness was violated. He also asserts that the circuit court erred in failing to exclude Bolinger’s testimony because Bolinger failed to conduct frequency calculations for the random match probabilities on some of the samples that she tested and, therefore, her conclusions were irrelevant. We disagree.

The decision of whether to admit expert testimony is left to the sound discretion of the circuit court, and we will not disturb the circuit court’s decision absent an abuse of discretion. State v. Hayes, 88 S.W.3d 47, 61 (Mo.App.2002). “ ‘This discretion is abused only when the ruling is clearly against the logic of the circumstances, or when it is arbitrary and unreasonable.’ ” Id. (citation omitted).

To the extent that Harding contends that his Sixth Amendment right to confront the witness was violated because Bolinger could not answer questions about her conclusions and the methodology she used to review the raw and analyzed electronic data from her DNA testing, his contention is without merit. Bolinger testified at trial and was subject to cross-examination. Whether or not Bolinger could answer specific questions posed by Harding did not deny Harding his rights to confront her under the Sixth Amendment. In his cross-examination of Bolinger, Harding was effectively able to point out that Bolinger had not reviewed the raw and analyzed electronic data from her DNA testing and that she could not testify about her decision to consider certain alleles and to disregard other alleles in making her DNA conclusions. The Confrontation Clause is not implicated where the witness is available for cross-examination at trial. See Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); State v. Perry, 275 S.W.3d 237, 243 (Mo. banc 2009). The Confrontation Clause’s guarantee is procedural and “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541 U.S. at 61, 124 S.Ct. 1354.

Harding also complains that the circuit court erred in failing to exclude Bolinger’s testimony because she failed to conduct frequency calculations for the random match probabilities on the partial DNA profiles. Harding contends that, without that statistical analysis, Bolinger’s conclusions were irrelevant and, therefore, inadmissible.

The evidence established that Bolinger conducted frequency calculations for the random match probabilities on the major component of the sperm fraction from the vaginal swab, the results from the beer can found in the field, and from the results on the steering wheel faceplate. She did not conduct frequency calculations for the random match probabilities on the partial DNA profiles obtained on the driver’s side interior door panel, on the driver’s side interior door handle, or on the partial DNA profiles obtained on the vaginal and anal swabs. As to these partial profiles, Bolinger said only that Harding could not be eliminated as the source of the DNA found in these partial profiles.

DNA evidence, even without a showing of statistical significance, is admissible. State v. Ferguson, 20 S.W.3d 485, 495 (Mo. banc), cert. denied, 531 U.S. 1019, 121 S.Ct. 582, 148 L.Ed.2d 499 (2000). In Ferguson, the defendant claimed that the circuit court erred in admitting DNA evidence because the State presented no evidence of the statistical significance of its DNA test results and that the characterization of the DNA comparison as a “match” is meaningless. Id. Although the defendant conceded that he did not object to evidence and asked for plain error review, the Ferguson court found that it was not error — much less plain error — for the circuit court to admit DNA testimony without evidence of the statistical significance of the DNA test results. Id. The court said:

Scientific evidence, such as hair, fiber, and blood type evidence, is often admitted where the only conclusion to be drawn is that the tested sample is consistent with the defendant’s sample, or that defendant’s sample shows that he cannot be excluded as the perpetrator. Therefore, it was not error, much less manifest injustice, to admit the testimony that [the defendant’s] DNA “matched” that of the DNA extracted from the semen stain on [the victim’s] coat.

Id.

Even though a full genetic profile was not obtained, the circuit court could rely on the partial profiles that left Harding as a possible source of the DNA along with the other evidence in determining guilt. “The weight to be afforded this evidence was within the province of the [fact-finder] to decide.” State v. Rockett, 87 S.W.3d 398, 405 (Mo.App.2002) (holding that the jury could rely on DNA evidence that did not result in a positive identification of the defendant). Indeed, in State v. Abdelmalik, 273 S.W.3d 61, 64 (Mo.App.2008), this court said that, even though a full genetic profile may not be produced from the materials gathered, it is permissible for a fact-finder to give significant weight to the DNA evidence when the partial profiles generated from these samples do not eliminate the defendant as a possible source of the material. The circuit court, therefore, did not err in allowing Bolinger to testify about the partial DNA profiles she developed in the case without conducting frequency calculations for the random match probabilities on the partial DNA profiles.

In his second point on appeal, Harding contends that the evidence was insufficient to convict him of murder in the first degree. In particular, he points to this evidence to establish that the evidence was insufficient to sustain his conviction:

(1) McWilliams engaged in a violent struggle that ended in her death and sustained many wounds that bled profusely, but, within 36 hours of the offense, Harding had no injuries and the sweater that he wore on the night of the offense, which had not been cleaned, had no blood or other tissues or fluids that would have linked him to the offense;
(2) None of the tools in Harding’s truck had blood or traces of body fluids on them that would have linked him to McWilliams’ death;
(3) Times provided by witnesses who purportedly saw Harding’s truck in the area, when considered together, rendered Harding’s guilt of murder physically impossible, and
(4)All of the people who purportedly saw Harding’s truck near the field where McWilliams’ body was found had a motive to lie.

Harding, however, in focusing on the evidence and inferences that do not support his conviction, ignores the appropriate standard of review.

In reviewing the sufficiency of the evidence, we deem all evidence favorable to the State to be true. State v. Crawford, 68 S.W.3d 406, 407 (Mo. banc 2002). We do not reweigh the evidence, and we disregard all evidence and inferences contrary to the verdict. Id. at 408. Our review is limited to determining whether or not the state presented sufficient evidence from which a reasonable fact-finder could have found the defendant guilty beyond a reasonable doubt. Id. Even when the State’s case is based upon circumstantial evidence, we must accept as true all evidence tending to prove the defendant’s guilt and accept all reasonable inferences supporting the verdict while disregarding all parts of the record contrary to the verdict. State v. Shelton, 78 S.W.3d 200, 204 (Mo.App.2002).

The evidence in this case was sufficient for a reasonable fact-finder to establish that Harding was guilty beyond a reasonable doubt of murder in the first degree. The evidence established that Harding and McWilliams were seen together inside and outside a bar in the early morning hours before McWilliams’s dead body was discovered in a field. After the bar closed, Jeremy Dodd saw Harding and McWilliams standing next to Harding’s truck with the driver’s door open, and it appeared to Dodd that Harding and McWilliams were getting ready to get inside the truck. Not long after Harding left the bar, Harding’s truck was seen parked on the wrong side of the road immediately next to the field where McWilliams’s body would be discovered a few hours later. Two cans of Budweiser beer found in a cooler in the back of Harding’s truck matched the lot number printed on a can found in the field near McWilliams’s body.

Further, as previously discussed, several areas inside Harding’s truck tested positive for the presence of blood. A DNA profile consistent with McWilliams’s DNA was found on the steering wheel faceplate. Partial DNA profiles were developed from the blood stains on the driver’s side interi- or door handle and the driver’s side interi- or door panel, and neither Harding nor McWilliams could be eliminated as the source of the DNA found there. Moreover, a DNA profile consistent with Harding was found on the beer can discovered in the field near McWilliams’s body.

Tests on McWilliams’s vaginal swabs and rectal swabs tested positive for semen. DNA consistent with Harding’s DNA profile was found in the major component of the sperm fraction of McWilliams’s vaginal swab, and Harding could not be eliminated as the minor contributor on the non-sperm fraction of the vaginal swab. As to the sperm fraction from the rectal swab, Harding could not be eliminated as a source of the minor component.

Moreover, Harding told the police that McWilliams had never been in his truck and that he had never had sex with McWil-liams. The DNA evidence establishes otherwise. Harding’s denials evidence a consciousness of guilt that the court could consider in determining his guilt. Perry, 275 S.W.3d at 249; State v. Blair, 298 S.W.3d 38, 45 (Mo.App.2009).

Given all of this evidence, we find that the evidence was sufficient for a fact-finder to conclude that Harding was guilty of murder in the first degree beyond a reasonable doubt. We will not reweigh the evidence because such is contrary to our standard of review.

We, therefore, conclude that the circuit court did not err and abuse its discretion in overruling Harding’s motion to exclude and strike the testimony and reports of the State’s DNA analyst and in considering DNA evidence that lacked statistical analy-ses. The circuit court also did not err in overruling Harding’s motion for judgment of acquittal at the close of all the evidence and in convicting him because the evidence was sufficient for the court to find Harding guilty of murder in the first degree. We affirm the circuit court’s judgment.

All concur.

      . Evidence was presented that Harding had had a '‘Ray/Carroll'' agricultural cooperative sticker removed from the door, but the door still had a faded circle with writing on it from the removal of the sticker.

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

      . No blood was found on the sweater.

      . According to Bolinger, random match probability is the chance of picking one person out of a million and having that person have the same DNA profile as a profile done in her lab.

      . A quadrillion is "the number represented by 1 followed by 15 zeroes.” Webster's New World College Dictionary 1172 (4th ed.2002).

      . The evidence established that Bolinger did give a copy of the raw DNA data to the defense. Inexplicably, Harding was demanding that Bolinger analyze the raw data for the defense. Bolinger refused to do that absent authorization from the State or being directed to do so by the court.

      . The State argues that Harding waived appellate review of the Confrontation Clause claim because he had filed a written motion to exclude Bolinger’s testimony, and, on the eve of trial, Harding withdrew the motion as part of an agreement with the State on various matters. Although Harding did withdraw his motion to exclude Bolinger’s testimony, he told the court that he intended to challenge Bolinger's testimony at trial during cross-examination.

      . To state the corollary of Harding’s position is to demonstrate the fallacy of it. If the evidence eliminated Harding as a source of the DNA sample, such evidence would certainly be relevant and admissible even without statistics regarding the percentage of the population.

      . Although not determinative, it is not lost on this court that the fact-finder in this case was a seasoned trial judge who could and did easily differentiate between the various categories of DNA evidence presented and assigned each such weight as he believed that evidence was entitled.


author: PER CURIAM:

text:
    Richard STALLINGS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71751.
    Missouri Court of Appeals, Western District.
    Sept. 21, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.
    Richard Stallings, Cameron, MO, pro se, appellant.

      Shaun J. MacKelprang, Esq., and Richard Starnes, Esq., Jefferson City, MO, for respondent.
    Before: MARK D. PFEIFFER, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.
   ORDER

PER CURIAM:

Richard Stallings appeals from the dismissal of his petition for declaratory judgment, which sought to reopen proceedings on his motion for post-conviction relief following his conviction for first-degree murder and armed criminal action. We affirm. Because a published opinion would have no precedential value, an unpublished memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


author: PER CURIAM.

text:
    KANSAS CITY LIFE INSURANCE COMPANY, Respondent, v. CARE STAFF, INC. et al., Appellants.
    No. ED 94158.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 21, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.
    Vincent D. Vogler, Jonathan E. Brent, St. Louis, MO, for Appellant.
    Michael B. Hunter, Lisa A. Jarkin, Kevin J. Rejent, St. Louis, MO, for Respondent.
    Before ROY L. RICHTER, C.J., KENNETH M. ROMINES, J., and MICHAEL BULLERDIECK, SP. J.
   ORDER

PER CURIAM.

Robert Sankey (“Sankey”) appeals the trial court’s decision against him awarding Kansas City Life Insurance Co. (“Kansas City Life”) damages for the breach of a lease between Kansas City Life and Care Staff Inc. (“Care Staff’).

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 for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Thomas E. HUTSLER, II, Respondent, v. Mark VASTO, Appellant.
    No. WD 71769.
    Missouri Court of Appeals, Western District.
    Sept. 28, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.

      Jennifer A. Donnelli, Esq., and Thomas E. Nanney, Esq., Kansas City, MO, for appellant.
    Anthony A. Stein, Esq., and Timothy J. Mudd, Esq., Kansas City, MO, for respondent.
    Before: JOSEPH M. ELLIS, P.J., and ALOK AHUJA and KAREN KING MITCHELL, JJ.
   ORDER

PER CURIAM:

Thomas Hutsler filed a petition in the Platte County Circuit Court seeking an Order of Protection against Mark Vasto, based on repeated confrontations between the two. Vasto failed to appear at the hearing on Hutsler’s request for a full Order of Protection. The circuit court granted Hutsler a default judgment, and later denied Vasto’s Motion to Set Aside the default. Vasto appeals. We affirm. Because a published opinion would have no precedential value, an unpublished memorandum setting forth the reasons for this order has been provided to the parties. Rule 84.16(b).


author: THOMAS H. NEWTON, Judge.

text:
    Joey Scott LUMAN, Appellant, v. ITS TECHNOLOGIES & LOGISTICS, LLC, Respondent.
    No. WD 72010.
    Missouri Court of Appeals, Western District.
    Sept. 28, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 2, 2010.

      John M. Cronan, Overland Park, KS, for Appellant.

      David R. Sehlee, Kansas City, MO, for Respondent.
    Before: VICTOR C. HOWARD, P.J., THOMAS H. NEWTON, and GARY D. WITT, JJ.
   THOMAS H. NEWTON, Judge.

Mr. Joey Scott Luman appeals the trial court’s judgment dismissing his personal injury suit against ITS Technologies & Logistics, LLC (“ITS”) and finding that Missouri Workers’ Compensation Law, RSMo section 287.010, et seq., (‘Workers’ Compensation”) governed the action. Mr. Luman contends his claim was governed by the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51 et seq. We reverse and remand.

Factual and Procedural Background

ITS provides switching, terminal, and maintenance service at the Richards-Geb-aur International Freight Center (“Richards-Gebaur”) for Kansas City Southern Railway Company (“KC Southern”). In May 2008, Mr. Luman, a Terminal Operator for ITS, was operating a switch engine at Richards-Gebaur when it was struck by a train operated by KC Southern employees.

Mr. Luman brought a personal injury action against ITS and KC Southern and subsequently settled with KC Southern. In the petition, Mr. Luman asserted that FELA governed his claim against ITS. He filed a motion for partial summary judgment on the issue of FELA’s applicability to the claim. ITS also moved for summary judgment, or in the alternative to dismiss for lack of subject matter jurisdiction. It argued, inter alia, that it was not a “common carrier” under FELA, the trial court did not have jurisdiction because Missouri Workers’ Compensation Law (“Workers’ Compensation”) provided Mr. Luman’s exclusive remedy, and Mr. Lu-man was estopped from suit because he had accepted Workers’ Compensation benefits. In its answer, ITS further denied FELA was applicable and raised as an affirmative defense that Workers’ Compensation provided Mr. Luman’s exclusive remedy.

On November 16, 2009, the trial court issued an order and memorandum. In its findings, the trial court concluded that if FELA applied to Mr. Luman’s claim, the receipt of benefits would not estop him from proceeding with the FELA claim, in part because the Workers’ Compensation benefits could be recouped from any FELA award. The trial court further found that ITS was not a “common carrier” for FELA purposes and concluded that FELA did not apply. The trial court denied Mr. Luman’s motion for partial summary judgment, and though it did not expressly so hold, effectively granted ITS’s competing motion for summary judgment insofar as it claimed ITS was not a “common carrier” under FELA. The trial court then granted ITS’s motion to dismiss, finding that it lacked subject matter jurisdiction because Mr. Luman’s injury was covered by Workers’ Compensation. Mr. Luman appeals and argues that the trial court erred in dismissing the suit because it was governed by FELA rather than by Workers’ Compensation.

Standard of Review

Though the trial court, having found that FELA did not apply, dismissed Mr. Luman’s claim for lack of subject matter jurisdiction, we concluded in Fortenberry v. Buck that where the exclusivity of Workers’ Compensation is raised as a defense, a trial court must employ the more rigorous summary judgment standard to a request for dismissal. 307 S.W.3d 676, 679 (Mo.App. W.D.2010). We can, in this case, overlook the trial court’s technical error as it is evident from the collective orders of the trial court that the decision to dismiss Mr. Luman’s claim because it was covered exclusively by Workers’ Compensation naturally followed the trial court’s application of the proper standard to both Mr. Lu-man’s and ITS’s competing motions for summary judgment regarding the application of FELA. Thus, the central issue in determining whether the trial court properly dismissed Mr. Luman’s claim is whether the trial court properly concluded, as a matter of law, that based on the apparent uncontested facts before it, FELA was not applicable because ITS was not a “common carrier.”

Whether FELA applies to Mr. Luman’s claim is ultimately a question of preemption. See Nordgren v. Burlington N.R.R. Co., 101 F.3d 1246, 1248 (8th Cir.1996). To determine if Congress has exercised its power under the Supremacy Clause to preempt a state cause of action, we must look to congressional intent. Id. We determine Congress’s intent from the language expressed in the statute. Stegall v. Peoples Bank of Cuba, 270 S.W.3d 500, 503 (Mo.App. S.D.2008). To determine the applicability of FELA, we engage in statutory interpretation, which raises a question of law that requires de novo review. Id. FELA is a remedial statute, and we are to construe it liberally. Nordgren, 101 F.3d at 1249.

Applicability of FELA to Mr. Luman’s Claim

To determine FELA’s scope, we look to its purposes, background, and the construction given to it by the U.S. Supreme Court. Id. at 1248. Prior to FELA’s enactment in 1908, a railroad employee’s recourse for the negligence of a fellow employee was significantly limited by common law doctrines and contractual employment agreements. Id. at 1248-49. In FELA, Congress sought to shift the burden of railroading’s physical hazards from employees to their employers by limiting the applicability of these doctrines and barring employers from exempting themselves from liability through contract. Id. at 1249. Thus, “[u]nder FELA, railroads engaging in interstate commerce are liable in damages to their employees who suffer injury or death in the course of their employment as a result in whole or in part of the negligence of any of the railroad’s officers, agents, or employees.” Id. (citing 45 U.S.C. § 51). FELA further preempts an injured railroad employee’s state-law personal injury claims, creating a “uniform federal law of liability.” Id. at 1250, 1252.

FELA does not apply to all railroad enterprises: it specifically provides liability for “common carrier[s] by railroad engaged in interstate commerce.” Edwards v. Pac. Fruit Express Co., 390 U.S. 538, 538-39, 88 S.Ct. 1239, 20 L.Ed.2d 112 (1968); 45 U.S.C. § 51. A “common carrier” has been defined as:

one who holds himself out to the public as engaged in the business of transportation of person or property from place to place for compensation, offering his services to the public generally. The distinctive characteristic of a common carrier is that he undertakes to carry for all people indifferently, and hence is regarded in some respects as a public servant.

Lane Star Steel Co. v. McGee, 380 F.2d 640, 643 (5th Cir.1967), cert. denied, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 471 (1967) (internal citation and quotation marks omitted). Common carriers are distinguished from private carriers: a common carrier is impliedly one who is engaged in the business of transportation for anyone who wishes to use the service, while a private carrier renders rail service only for certain people or certain businesses. Id. at 645.

Relying on Lone Star and Greene v. Long Island Railroad Co., 280 F.3d 224, 235-36 (2d Cir.2002), Mr. Luman argues that ITS is a “common carrier by railroad engaged in interstate commerce” because of its integral relationship with KC Southern. The parties’ documents and pleadings show the following undisputed facts relating to the relationship between ITS and KC Southern.

KC Southern owns and operates the tracks at Richards-Gebaur. As part of its intermodal freight service for its customers, KC Southern crews bring and take away railcars from the switching yard. At the switching yard, ITS unloads and reloads automobiles and shipping containers from the railcars for further transport by KC Southern and “makes up” trains for KC Southern’s outbound routes. Under the two companies’ “Terminal Services and Maintenance Agreement” ITS also provides support and administrative services, including the janitorial and trash removal at Richards-Gebaur. In addition to those services described, under the “Switching Agreement” ITS provides the lift equipment and “hostlers” used by its employees to load and unload the railcars and the switch engines for its switching service. ITS also switches empty railcars to specific tracks so that KC Southern crews can move them to other rail terminals. At the time of the injury, Mr. Luman was using an ITS switch engine to move an empty railcar to make way for an incoming train.

Mr. Luman highlights that the Terminal and Services Maintenance Agreement further provides that: (1) personnel supervision is to be consistent with KC Southern policy; (2) ITS’s records of operation of the facility will be available to KC Southern; (3) KC Southern is given contractual authority to direct ITS’s lift operation, provision of related services, and operating hours; and (4) vehicle operation by ITS employees must conform to KC Southern rules. The Switching Agreement also provides that ITS will provide switching at KC Southern’s request, furnish switching reports, and allow KC Southern to examine its related books and records.

Mr. Luman relies on Lone Star to argue that these facts show ITS was a common carrier through its relationship with KC Southern. In Lone Star, the employee of a steel producer was injured while switching trains within its in-plant rail facility. 380 F.2d at 641. The Fifth Circuit found that Lone Star Steel was a common carrier under FELA through its integral relation with a common carrier in interstate commerce. Id. at 642. Because Lone Star Steel was “a necessary part of [the carrier’s] total rail operation” and undertook the carrier’s obligations as a common carrier, Lone Star Steel could not claim to be a private carrier. Id. at 646. The Lone Star court set forth factors it believed were of “prime importance” in making this determination: (1) “the actual performance of rail service”; (2) the service is performed as part of a total rail service contracted for by a member of the public; (3) the service is performed as part of an interstate rail system by virtue of a relationship with a railroad, either through common ownership or by contract; and (4) the entity receives remuneration for the services. Id. at 647.

In accord with these factors, Mr. Luman argues: (1) he was injured while performing rail service by moving a railcar; (2) he was moving the railcar to make room for in-bound trains, which was “a part of the total services contracted for by members of the public in their business relationship” with KC Southern; (3) that his work was part of KC Southern’s overall system of interstate rail transportation in which ITS and Mr. Luman participated because of their contractual relationship; and (4) that ITS received remuneration.

The trial court, while acknowledging the factors cited in Lone Star, concluded ITS was not a common carrier because: (1) ITS was KC Southern’s independent contractor; (2) ITS only performed switching on tracks located at Richards-Gebaur; (3) ITS did not move railcars across state lines; and (4) KC Southern and ITS did not have financial interests in each other. We do not find these factors conclusive.

As previously mentioned, we look to Congressional intent to determine whether FELA applies to the employer at issue. United States v. Brooklyn E. Dist. Terminal, 249 U.S. 296, 304, 39 S.Ct. 283, 63 L.Ed. 613 (1919). Through FELA, Congress sought to liberalize recovery for railroad employees due to the hazards of the industry. Nordgren, 101 F.3d at 1249. Consequently, a railroad company may not avoid FELA liability by delegating its duties to an independent contractor. Eddings v. Collins Pine Co., 140 F.Supp. 622, 629 (D.C.Cal.1956). This conclusion, however, “does not and should not limit the responsibility of [the contractor] under both the contract and practices followed.” Id. To hold the railroad company liable while excusing the independent contractor performing essential railroad operations would frustrate “[t]he beneficent and humane purposes of the Act ... by denying relief to employees in interstate commerce who were actually carrying on the railroad functions.” Id,.; see also Greene, 280 F.3d at 235 (“Even the fact that a company ‘conducts [such] operations, not as an integral part of a single railroad system but wholly as an agent for one or several,’ does not exempt it from the status of common carrier.” (quoting Brooklyn, 249 U.S. at 305, 39 S.Ct. 283)).

Rather, as the case law aptly demonstrates, whether an entity is a common carrier depends “upon what it does.” Brooklyn, 249 U.S. at 304, 39 S.Ct. 283. Where the work performed by a contractor is essential to the railroad’s operations as a common carrier, the contractor falls within FELA. See Erie R.R. Co. v. Margue, 23 F.2d 664, 665 (6th Cir.1928).

ITS points us to various cases involving switching companies and in-plant carriers that were found to be private carriers rather than common carriers. However, these cases do not mirror the case at hand. This is not a case such as in Rabb v. East Camden & Highland Railroad Co. where the switching company simply moved the railroad’s empty cars into storage. See No. 5:08-CV-244, 2009 WL 960105, at *2 (W.D.La. April 8, 2009). Rather, ITS served as a vital link in KC Southern’s intermodal system. Nor is the relationship analogous to those in Mack v. East Camden & Highland Railroad Co., 297 F.Supp.2d 1052, 1059-60 (W.D.Tenn.2003), and Loveless v. Railway Switching Services, Inc., 106 Ohio App.3d 46, 665 N.E.2d 252, 255 (1995). In both of those cases, the in-plant carriers at issue did not have a relationship with a common carrier through common ownership or by contract. Mack, 297 F.Supp.2d at 1060; Loveless, 665 N.E.2d at 254. As noted in Loveless, the third and fourth considerations cited by Lone Star “contemplate an affiliation between an in-plant operation and a full-service, common carrier railroad in order to confer the status of common carrier upon what would otherwise be an in-plant operation.” 665 N.E.2d at 254. Similarly distinguishable are the Eighth Circuit cases cited by ITS. In Iverson v. Southern Minnesota Beet Sugar Co-op., the employer at issue was carrying its own products for loading and unloading and had no contractual duties that would have made it part of the railroad’s interstate delivery system. 62 F.3d 259, 263-64 (8th Cir.1995); see also Aho v. Erie Mining Co., 466 F.2d 539, 540-41 (8th Cir.1972) (employer carrying only its own products was not a common carrier).

Here, the relationship between ITS and KC Southern met the factors enumerated in Lone Star. Moreover, ITS performed essential aspects of KC Southern’s operation as a common carrier by unloading the freight and automobiles from the incoming railcars, reloading the railcars, and making up the outbound trains as part of KC Southern’s service to its customers, in addition to providing maintenance and administrative services. Had KC Southern been doing the unloading and loading of its customers’ freight or the switching of its railcars itself when an injury occurred, we would find it incredible for KC Southern to argue these activities were not an essential part of its operations as a common carrier. The relationship between ITS and KC Southern shows a case of “actively managing and uniting” the railroad and its contractor into an organized system. See Lone Star, 380 F.2d at 648 (quoting S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 523, 31 S.Ct. 279, 55 L.Ed. 310 (1911)).

Therefore, we find that because ITS performed a necessary part of KC Southern’s total rail operation and undertook obligations of KC Southern’s as a common carrier, Mr. Luman’s suit was properly brought under FELA. See id. at 646. Mr. Luman’s first point is granted.

Conclusion

Therefore, we reverse and remand for further proceedings consistent with this opinion.

HOWARD, P.J., and WITT, JJ. Concur.

      . The trial court’s determination that ITS was not a "common carrier" necessarily required it to weigh factual allegations. It appears the facts relied on by the trial court to support its conclusion were not contested, and neither party contends to the contrary on appeal.

      . Mr. Luman raises a second point contending that his receipt of Workers' Compensation benefits did not preclude the claim. However, there is no point of error for us to review because the trial court agreed with Mr. Lu-man, finding that if Mr. Luman had a claim under FELA, the receipt of workers’ compensation benefits would not have estopped him from proceeding. See Bailey v. Mo.-Ks.-Tex. R.R., 732 S.W.2d 248, 249 n. 2 (Mo.App. E.D.1987).

      . Missouri Workers’ Compensation provides that it applies to all cases falling within its provisions "except those exclusively covered by any federal law.’ " Augur v. Norfolk S. Ry. Co., 154 S.W.3d 510, 515 (Mo.App. W.D.2005) (quoting § 287.110.1). Although Missouri provides that an employer subject to Workers' Compensation includes " 'any person or corporation operating a railroad,’ ” it thus exempts those injuries covered by FELA. Id. (quoting § 287.030.1(1)).


author: ROY L. RICHTER, Chief Judge.

text:
    ARROW FINANCIAL SERVICES, LLC, Respondent, v. Deborah COLLIER, Appellant.
    No. ED 94005.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 26, 2010.

      Mitchell B. Stoddard, St. Louis, MO, for Appellant.
    William F. Whealen, Jr., Stephen J. Barber, St. Louis, MO, for Respondent.
   ROY L. RICHTER, Chief Judge.

Deborah Collier (“Collier”) appeals the trial court’s decision in favor of Arrow Financial Services, LLC (“Arrow Financial”) denying Collier’s request for attorney’s fees. We reverse and remand.

I. BACKGROUND

Arrow Financial was an assignee on an indebted credit card account held by Collier. Arrow Financial filed suit to collect from Collier. Collier filed a counterclaim arguing that Arrow Financial had violated the Fair Debt Collection Practices Act (“FDCPA”). After Arrow Financial did not respond to several discovery requests, the trial court entered an order granting Collier’s motion for sanctions and to strike Arrow Financial’s pleadings. Collier also later filed a motion for attorneys’ fees pursuant to Section 408.092 RSMo sup 2001.

A bench trial was held for Collier’s counterclaim on September 29, 2009. At the end of Collier’s evidence, the trial court asked Collier’s trial counsel (“Counsel”) if he had any further evidence. Counsel stated that he did not. However, midway through closing, Counsel realized that he had failed to put on evidence regarding attorneys’ fees. Counsel’s request to reopen the case to put on testimony concerning attorneys’ fees was denied by the trial court.

The trial court entered judgment on October 28, 2009 awarding the majority of the requested damages to Collier. However, the trial court denied Collier’s request for attorneys’ fees, stating that “there was no evidence presented” on the issue.

Collier’s post trial motion for attorneys’ fees or in the alternative to amend the judgment to award attorneys’ fees was denied. Collier appeals.

II. DISCUSSION

We address Collier’s second point first because we find it to be dispositive. In her second point on appeal, Collier argues that the trial court abused its discretion when it refused to allow Collier to reopen her case to admit evidence of attorneys’ fees because the trial court had not made any substantive ruling and Arrow Financial would not have suffered detriment as a result of the motion being granted. We agree.

An appellate court reviews a trial court’s decision not to reopen a case for abuse of discretion. Forney v. Mo. Bridge and Concrete Inc. 112 S.W.3d 471, 475 (Mo.App. W.D.2003).

When there is no inconvenience to the Court or unfair advantage to one of the parties, there is an abuse of discretion and a new trial will be directed upon a refusal to reopen a case and permit the introduction of material evidence, that is evidence that would substantially affect the merits of the action and perhaps alter the Court’s decision.

Foster v. Village of Brownington, 76 S.W.3d 281, 287 (Mo.App. W.D.2002).

Here, Collier’s request to reopen evidence to present evidence of the attorneys’ fees owed was made within minutes after the close of evidence. There would be no inconvenience to the Court to allow presentation of evidence of attorneys’ fees and there would be no unfair advantage to Collier. Arrow Financial was prepared for a claim of attorneys’ fees by Collier, as a motion requesting attorneys’ fees was filed on August 5, 2009, nearly two months before the trial. Because there was no inconvenience to the court, nor any unfair advantage to Collier, we find that the trial court abused its discretion. Point granted.

Because we agree with Collier’s second point on appeal, we need not address the other points raised. “Issues that are not essential to a disposition of the case should not be addressed.” O’Hare v. Permenter, 113 S.W.3d 287, 289 (Mo.App. E.D.2003) (quoting State v. Kinkead, 983 S.W.2d 518, 520 (Mo. banc 1998)).

III. CONCLUSION

The judgment of the trial court is reversed and remanded for the trial court to determine the amount of attorney fees to be awarded. Appellant’s Motion for Award of Attorney’s Fees on Appeal is granted in the amount of $2,500.00.

KENNETH M. ROMINES, J., and STEPHEN K. WILLCOX, Sp. J., concur.


text:
    Jonathan CAMPBELL, Appellant, v. STATE of Missouri, Respondent.
    No. WD 72072.
    Missouri Court of Appeals, Western District.
    Nov. 2, 2010.

      Susan L. Hogan, Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, MARK D. PFEIFFER, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Jonathan Campbell appeals the judgment of the trial court that denied his motion for post-conviction relief.

We affirm. Rule 84.16(b). A memorandum setting forth the reasons for this order has been provided to the parties.


text:
    Nathan REEDER, Appellant, v. BOARD OF EDUCATION OF MARSHALL SCHOOL DISTRICT, Respondent.
    No. WD 71930.
    Missouri Court of Appeals, Western District.
    Nov. 2, 2010.
    R. Mark Nasteff, Jr., Kansas City, MO, Attorney for Appellant.
    Thomas A. Mickes, Natalie A. Hoern-schemeyer, and Elizabeth A. Helfrich, St. Louis, MO, Attorneys for Respondent.
    Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

Nathan Reeder appeals the judgment of the Circuit Court of Saline County, which upheld the ruling of the Board of Education of Marshall School District terminating his employment. In five points on appeal, Reeder argues reversible error because he claims his due process rights were violated by an unfair and partial hearing and the Board’s decision to terminate him was not supported by competent and substantial evidence. We affirm in this per curiam order and have provided the parties a memorandum of law explaining our ruling today. Rule 84.16(b).


text:
    Crystal MCGRAW, Appellant, v. BOARD OF EDUCATION OF MARSHALL SCHOOL DISTRICT, Respondent.
    No. WD 71929.
    Missouri Court of Appeals, Western District.
    Nov. 2, 2010.
    R. Mark Nasteff, Jr., Kansas City, MO, for Appellant.

      Thomas A. Mickes, Natalie A. Hoern-sehemeyer, and Elizabeth A. Helfrich, St. Louis, MO, for Respondent.
    Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

Crystal McGraw appeals the judgment of the Circuit Court of Saline County, which upheld the ruling of the Board of Education of Marshall School District terminating her employment. In five points on appeal, McGraw argues reversible error because she claims her due process rights were violated by an unfair and partial hearing and the Board’s decision to terminate her was not supported by competent and substantial evidence. We affirm in this per curiam order and have provided the parties a memorandum of law explaining our ruling today. Rule 84.16(b).


text:
    Dawn PLUMMER, Appellant, v. BOARD OF EDUCATION OF MARSHALL SCHOOL DISTRICT, Respondent.
    No. WD 71928.
    Missouri Court of Appeals, Western District.
    Nov. 2, 2010.
    R. Mark Nasteff, Jr., Kansas City, MO, for Appellant.
    Thomas A. Mickes, Natalie A. Hoern-schemeyer, and Elizabeth A. Helfrich, St. Louis, MO, for Respondent.
    Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

Dawn Plummer appeals the judgment of the Circuit Court of Saline County, which upheld the ruling of the Board of Education of Marshall School District terminating her employment. In five points on appeal, Plummer argues reversible error because she claims her due process rights were violated by an unfair and partial hearing and the Board’s decision to terminate her was not supported by competent and substantial evidence. We affirm in this per curiam order and have provided the parties a memorandum of law explaining our ruling today. Rule 84.16(b).