author: SHERRI B. SULLIVAN, Judge.

text:
    Lee WEICHT and Elizabeth Weicht, et al., Plaintiffs/Appellants, v. SUBURBAN NEWSPAPERS OF GREATER ST. LOUIS, INC. and Journal Register Company, Defendants/Respondents.
    No. ED 77618.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 10, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 9, 2000.
    Application for Transfer Denied Dec. 27, 2000.

      Marvin L. Landmark, III, Law Office of Bobroff, Hesse, Lindmark & Martone, Clayton, for respondents.
    Richard C. Witzel, David Anthony Dim-mitt, Paul K. Travous, Alan G. Kimbrell, Law Office of Witzel, Kearns, Kenney & Dimmitt, St. Louis, for appellants.
   SHERRI B. SULLIVAN, Judge.

Lee and Elizabeth Weicht and 116 other appellants (collectively “Appellants”) appeal from a trial court judgment granting summary judgment for Suburban Newspapers of Greater St. Louis, Inc. (“Suburban Newspapers”) on Count II, conversion, of their petition and dismissing for failure to state a claim Count I, tortious interference with an economic expectancy, and Count III, property damage, of their petition. Appellants also appeal the trial court’s dismissal of the Journal Register Company (“Journal”) for lack of personal jurisdiction. We affirm in part and reverse and remand in part.

Beginning in the early 1980’s, Appellants became independent contract carriers for Suburban Newspapers. Their contracts provided Appellants with the exclusive right to distribute newspapers within a defined geographic area and to sell those distribution rights. Appellants allege that for many years prior to their lawsuit, Suburban Newspapers was aware of and fostered the purchase and sale of its delivery routes. Appellants also allege that various actions by Suburban Newspapers culminating in 1994 destroyed the value of their routes, specifically, by:

announcing its intention to destroy the portion of its newspaper distribution system that utilizes independent contract carriers who have ownership interests in their routes; intentionally breaching its contracts with a large number of Appellants, including reducing the number of newspapers made available to Appellants to deliver to all the residences and businesses on Appellants’ routes and refusing to pay amounts agreed to in the distribution contracts; limiting renewal contracts to 30-day periods; substantially reducing the pay schedules in renewal contracts; hiring persons without ownership interests to deliver routes; permitting non-owner carriers to pick up their newspapers ahead of Appellants; and obstructing Appellants’ efforts to sell their routes.

Appellants allege that these actions by Suburban Newspapers became widely known among carriers and prospective purchasers of Appellants’ routes, rendering them unable to be sold.

Appellants divide their point one on appeal into three sections. Appellants’ point IA does not identify the trial court ruling or action that they challenge, as required by Rule 84.04(d). Accordingly, Appellants have not preserved anything for appellate review under point LA.

Appellants’ point IB argues that the trial court erred in granting summary judgment to Suburban Newspapers on Count II, conversion, of their claim because its ruling was based on Suburban Newspapers not taking possession of the routes, and thus the trial court overlooked the fact that destruction of property constitutes conversion.

This Court reviews summary judgment essentially de novo because the propriety of summary judgment is purely an issue of law. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is reviewed in the light most favorable to the party against whom judgment was entered, and that party is given the benefit of all reasonable inferences from the record. Id. Evidence presented in support of the motion is taken as true unless contradicted by the non-moving party’s response to the motion. Id. The moving party bears the burden of proving that it is entitled to judgment as a matter of law and that no genuine issues of material fact exist. Id. at 382. A genuine issue exists where the record contains competent materials which evidence two plausible, but contradictory, accounts of the essential facts. Id. A genuine issue is not an argumentative, imaginary, or frivolous dispute. Id.

Where the moving party is the defending party, it may establish a right to summary judgment by showing facts that negate any one of the plaintiffs prima facie case elements. Id. at 381. Upon meeting this burden, the non-moving party must show that one or more of the material facts shown by the moving party to be undisputed is, in fact, genuinely disputed. Id.

Appellants divide their argument under point IB into two sections. First, Appellants argue that their routes are [in]tangible personal property which may be the subject of conversion. This section is irrelevant as the trial court did not rely on or challenge this proposition in its judgment. The trial court stated in its judgment that individuals “may have property rights in newspaper distribution routes. See, Miskimen v. Kansas City Star Co., 684 S.W.2d 394 (Mo.App.1984)...; Parker v. Pulitzer Publishing Co., 882 S.W.2d 245 (Mo.App.1994) ...” Accordingly, we do not reach and need not address this issue on appeal. Although Miskimen suggests that Appellants may have certain rights beyond contractual against Suburban Newspapers, those rights are not found in their conversion cause of action.

Appellants argue that Suburban Newspapers converted Appellants’ routes when it destroyed their value in 1994. Conversion is the unauthorized assumption and exercise of the right to ownership over personal property of another to the exclusion of the owner’s rights. Manzer v. Sanchez, 985 S.W.2d 936, 940 (Mo.App. E.D.1999). The following three elements must be established to prove conversion: (1) plaintiff was the owner of the property or entitled to its possession; (2) defendant took possession of the property with the intent to exercise some control over it; and (3) defendant thereby deprived plaintiff of the right to possession. Id.

The trial court determined that conversion of the routes could not have occurred with regard to the following carriers: (1) those who remained in possession of their routes; (2) those who exercised contractual buy-out clauses transferring them routes to Suburban Newspapers; (3) those who abandoned their routes; and (4) those who sold their routes to third parties. Seventy-Appellants stipulated to one of the four categories. Nine Appellants not stipulating to one of the four categories subsequently dismissed, with prejudice, their claims. Thirty-nine Appellants neither stipulated nor dismissed their claims, but the trial court found one of the four categories applied to each of them. Appellants do not challenge these factual findings.

Assuming Appellants were the owners of their routes or entitled to their possession, they have not shown genuine issues of material fact as to elements two and three of their conversion claim. Conversion requires “an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” Lacks v. R. Rowland & Co., Inc., 718 S.W.2d 513, 520 (Mo.App. E.D.1986). Suburban Newspapers never deprived Appellants of their right to possession or control of their routes. For example, Appellants do not allege that Suburban Newspapers prevented them from distributing newspapers on their routes or in any other way prevented use of their routes by Appellants.

Additionally, consent and abandonment are complete defenses to a conversion claim. Graves v. Stewart, 642 S.W.2d 649, 650-651 (Mo. banc 1982) (When “an owner expressly or impliedly assents to or ratifies the disposition of his property, there can be no recovery for conversion, as there was no unauthorized conduct regarding the property of the owner.”); City of St. Peters v. Hill, 9 S.W.3d 652, 655 (Mo.App. E.D.1999) (“Abandonment is a complete defense to a conversion action and precludes recovery”).

As Appellants argue initially, their routes are intangible personal property that may be the subject of conversion. Appellants’ routes were not converted or destroyed by Suburban Newspapers. Suburban Newspapers never took possession of Appellants’ routes and Suburban Newspapers never deprived Appellants of possession of their routes. Appellants either had exclusive possession and control over their routes or the routes were voluntarily bought-out, abandoned, or sold.

Accordingly, Suburban Newspapers has shown facts which negate elements two and three of Appellants’ conversion claim, and Appellants have not shown that these material facts are genuinely disputed.

Appellants’ point IC argues that the trial court erred in dismissing their Count I, tortious interference with an economic expectancy, for failure to state a claim because they properly pled a cause of action for intentional harm to Appellants’ businesses.

Appellate review of a trial court’s grant of a motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiffs petition. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). It assumes that all of the plaintiffs aver-ments are true, and it liberally grants to the plaintiff all reasonable inferences therefrom. Id. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Id. The petition is reviewed to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case. Id. However, we do not accept the plaintiffs conclusions. Arnold v. Erkmann, 934 S.W.2d 621, 625 (Mo.App. E.D.1996). The defendant bears the burden of establishing that the elements pled by the plaintiff fail to state a cause of action. Saidawi v. Giovanni’s Little Place, Inc., 987 S.W.2d 501, 504 (Mo.App. E.D.1999). Plaintiff has no duty to respond to the defendant’s motion to dismiss. Id.

The elements of a tortious interference with a business expectancy cause of action are: (1) a contract or valid business relationship or expectancy; (2) the defendant’s knowledge of the contract or relationship; (3) intentional interference by the defendant inducing or causing a breach of the contract or relationship; (4) the absence of justification; and (5) damages resulting from the defendant’s conduct. Thomas Phelps Foundation v. Custom Ins. Co., Inc., 977 S.W.2d 33, 37 (Mo.App. E.D.1998).

In its order granting Suburban Newspapers’ motion to dismiss Count I, the trial court concluded the following:

[Appellants] have alleged here only that they own assets that have a market value, that they may wish to sell the assets at some time in the future, and that the actions of [Suburban Newspapers] have reduced or eliminated the market value of the assets. [Appellants] have not alleged that they are currently attempting to sell their routes, that they have entered into negotiations with particular persons in regard to such a sale, or that they have contracts to sell routes. [Appellants’] allegations do not set them apart from any other person owning an asset which such person may wish to sell at some point in the unspecified future to some unspecified purchaser.

Appellants cite Bell v. May Dep’t. Stores Co., 6 S.W.3d 871 (Mo. banc 1999), a case decided after the trial court’s order, to support their contention that they were not required “to allege specific purchasers, negotiations, or contracts entered into” in order to allege a “ ‘business expectancy in the sale of their routes.” Bell dealt with a claim of intentional interference with credit expectancy, one type of intentional interference with a business expectancy. Id. at 876. In Bell, the Missouri Supreme Court defined an expectancy as “that which is expected or hoped for.” Id. However, this expectancy cannot be too indefinite or remote. Id. In stressing that only a valid or reasonable expectancy or credit satisfies the test, the Court concluded that what “constitutes a reasonable chance of obtaining credit is usually a question of fact for the jury to decide where fair-minded persons could disagree.” Id. at 877.

Appellants alleged facts showing an ongoing market for their routes, of which Suburban Newspapers was aware. Based on these allegations and applying the reasoning of Bell, a reasonable jury could find Appellants had a valid business expectancy of selling their routes for similar or greater prices than they paid for them without pleading specific potential purchasers.

Additionally, as already indicated, Mi-skimen suggests that Appellants may have certain rights beyond contractual rights against Suburban Newspapers. Those rights may be found in their tortious interference with an economic expectancy cause of action. Appellants do not allege that the contracts between Appellants and Suburban Newspapers created the alleged expectancy, rather, the expectancy arose from Suburban Newspapers’ alleged conduct. In so concluding, we do not find that Suburban Newspapers alleged conduct rose to the same level, and thereby created the same duties, as that described in Mi-skimen. We simply find that a review of Appellants’ petition indicates that Appellants alleged facts necessary to meet the elements of a tortious interference with a business expectancy cause of action, and therefore the petition survives a motion to dismiss.

Accordingly, Appellants’ point one on appeal is denied in part and granted in part.

Appellants’ point two on appeal argues that the trial court erred in dismissing their Count III, property damage, for failure to state a claim because they pled under Section 587.330 that their routes were valuable personal property, the values of which were intentionally destroyed by Suburban Newspapers, and the statute, by its terms, applies to the intentional destruction of intangible property.

Appellate review of a trial court’s grant of a motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff’s petition. Nazeri, 860 S.W.2d at 306. It assumes that all of the plaintiffs averments are true, and it liberally grants to the plaintiff all reasonable inferences therefrom. Id. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Id. The petition is reviewed to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case. Id. However, we do not accept the plaintiffs conclusions. Arnold, 934 S.W.2d at 625. The defendant bears the burden of establishing that the elements pled by the plaintiff fail to state a cause of action. Saidawi, 987 S.W.2d at 504. Plaintiff has no duty to respond to the defendant s motion to dismiss. Id.

Appellants’ Count III alleged violations of Section 537.330. This section provides in part:

Malicious trespass — to personalty — double damages — issuance of attachment, when
If any person shall maliciously or wantonly damage or destroy any personal property, goods, chattels, furniture or livestock, the person so offending shall pay to the party injured double the value of the things so damaged or destroyed ....

The trial court found that although there “is very little case law discussing this statute, ... the title, text and context of this statute indicate that it provides a remedy for a trespass to tangible personal property.” Thus, the court concluded that because Appellants did not allege a physical interference with tangible personal property, but rather alleged an injury to contract rights, Appellants had no claim under Section 537.330.

Contrary to Appellants’ argument, the statute, by its temis, does not apply to the intentional destruction of intangible property. Although the text does not expressly limit the section to tangible personal property, neither does the text expressly apply the section to intangible personal property. We must determine if Section 537.330 applies to both tangible and intangible personal property or is limited to tangible personal property such that Appellants would not have alleged facts necessary to meet the elements of a Section 537.330 cause of action.

When interpreting a statute, our primary role is to ascertain the intent of the legislature from the language used in the statute and, whenever possible, give effect to that intent. Harrison v. King, 7 S.W.3d 558, 561 (Mo.App. E.D.1999). In determining legislative intent, the words used in the statute are to be considered in their plain and ordinary meaning. Id. Absent statutory definition, the dictionary may be used to determine the plain and ordinary meaning. Am. Healthcare Management, Inc. v. Director of Revenue, 984 S.W.2d 496, 498 (Mo. banc 1999).

Personal property is defined as any “movable or intangible thing that is subject to ownership and not classified as real property.” Black’s Law Dictionary 1233 (7th ed.1999). A trespass to personal property is defined as a “wrongful taking of chattels.” Id. at 1509. Chattel is defined as “Movable or transferable property; esp., personal property.” Id. at 229. Personal chattel is defined as a “tangible good or an intangible right.” Id.

Where the language of a statute is clear and unambiguous, we will give effect to the language as written and will not resort to statutory construction. Harrison, 7 S.W.3d at 561. Although no case has applied Section 537.330 to intangible personal property, nothing appears in the section to prohibit this application, and we find no indication that the legislature intended to limit the section to tangible personal property. Additionally, the dictionary definitions support a plain and ordinary meaning of personal property to include intangible things subject to ownership. Appellants’ routes qualify as such personal property.

Respondents cite State ex rel. Smith v. Greene, 494 S.W.2d 55 (Mo. banc 1973), to support the trial court’s interpretation of Section 537.330. In Greene, the Missouri Supreme Court compared Section 537.330 to Sections 537.340 and 537.350 to conclude that the section did not abrogate the common law right of punitive damages. The issue of whether Section 537.330 applies to both tangible and intangible personal property or is limited to tangible personal property was not before the Court.

Accordingly, we find that Section 537.330 applies to both tangible and intangible personal property, and thus the trial court erred in its conclusion. Appellants alleged facts necessary to meet the elements of a Section 537.330 cause of action. Appellants’ point two on appeal is granted.

Appellants’ point three on appeal argues that the trial court erred in dismissing the Journal for lack of personal jurisdiction because there was substantial evidence that Patrick Sweeney (“Sweeney”) and Suburban Newspapers were acting as agents of the Journal in engaging in the conduct which destroyed the value of Appellants’ routes.

The determination of the jurisdictional issue is for the trial court in the first instance, but the sufficiency of the evidence to make a prima facie showing that the trial court may exercise personal jurisdiction is a question of law, which we review independently on appeal. Stavrides v. Zerjav, 848 S.W.2d 523, 527 (Mo.App. E.D.1993). When the defendant asserts lack of personal jurisdiction in a motion to dismiss, the plaintiff bears the burden of establishing that (1) the suit arose out of the activities enumerated in the Missouri long-arm statute, Section 506.500; and (2) the defendant has sufficient minimum contacts with Missouri to satisfy due process requirements. Schilling v. Human Support Services, 978 S.W.2d 368, 370-71 (Mo.App. E.D.1998).

Section 506.500 provides in part:

Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in. person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:
(3) The commission of a tortious act within this state;

Appellants argue that the Journal committed a tortious act by “hiring Sweeney as circulation director for the express purpose of cutting the amounts paid to the carriers for stuffing and delivering ... Journal’s newspapers, and sending him to St. Louis with express orders to do so

Sweeney testified in his deposition that he met with Robert Jelenic (“Jelenic”), president and CEO of the Journal, and two others at a motel in Rhode Island, at which time he was told:

We’re going to send you down there. We think you can do the job. There are two things you have to do, hire an assistant, renegotiate the contracts. Go to St. Louis, meet with the publisher. If he likes you, you’ve got the job.

Sweeney further testified that he was told that “primarily, the biggest problem was renegotiation, that the carriers had gotten fat in St. Louis, they were making too much money, they were being overpaid, and that they had implemented contract changes that would correct that matter, .... ” Sweeney allegedly was told that Fred Matthias, then circulation director, was “dragging his feet in securing the savings that they wanted on renegotiating the contracts.”

Thomas Rice (“Rice”), president and CEO of Suburban Newspapers, testified in his deposition that he interviewed Sweeney at the request of Jelenic and that he hired Sweeney as an employee of Suburban Newspapers. Sweeney received a letter from Rice indicating his starting salary, and Sweeney understood Rice to be his supervisor. Rice also had the authority to fire Sweeney.

In its order, the trial court stated:

The Court does not believe that these statements by Mr. Sweeney indicate that he was acting as an agent of Journal in committing tortious acts in Missouri. At most, the statements indicate that Journal hoped Mr. Sweeney, in acting as an employee of Suburban Newspapers, would be able to implement contract changes through renegotiation with the carriers.

Accordingly, the trial court concluded that Appellants failed to meet their burden of showing that the Journal itself committed a tortious act in Missouri that would bring it within the terms of the long-arm statute. We agree with this conclusion.

Additionally, to determine whether a non-resident defendant has sufficient minimum contacts for a Missouri court to have personal jurisdiction, the following factors should be considered: (1) the nature and the quality of the contact; (2) the quantity of the contacts; (3) the relationship of the cause of action to the contacts; (4) the interest of Missouri in providing a forum for its residents; and (5) the convenience or inconvenience to the parties. Schilling, 978 S.W.2d at 371. The first three factors are of primary importance; the last two factors are of secondary importance. Id. If the non-resident defendant has sufficient minimum contacts, the following factors must be considered to determine whether jurisdiction over the defendant would comply with traditional notions of fair play and substantial justice: (1) the burden on the defendant; (2) the interest of the forum state; (3) the plaintiffs interest in obtaining relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. Id.

Appellants do not specifically address the issue of sufficient minimum contacts in their argument for this point, and thus appellate review of this issue is precluded.

Accordingly, Appellants have not established sufficient evidence to make a prima facie showing that the trial court may exercise personal jurisdiction over the Journal. Appellants’ point three on appeal is denied.

The judgment of the trial court is affirmed in part and reversed and remanded in part. Costs on appeal are to be split by the parties.

LAWRENCE E. MOONEY, P.J., and PAUL J. SIMON, J., concur.

      . All rules references are to Mo.R.Civ.P.2000, unless otherwise indicated.

      . Based on the facts and circumstances in Miskimen, the court concluded that application of equitable estoppel was justified to prevent the newspaper company from exercising a termination at will upon notice clause in the carriers’ contracts. The court concluded that the newspaper company’s attempt to terminate the contracts was almost totally inconsistent with its actual conduct for over ninety years. The court summarized the conduct as follows:
      From the 1880’s until 1977, the company maintained that the carriers had a proprietary interest in and owned their routes. The company approved of and actively participated in the carriers’ practice of selling their routes. It countenanced the practice of the carriers’ use of their routes as collateral and until 1977 acknowledged that lenders could have a security interest in such routes. It treated those routes as property subject to being passed to members of a carrier's family upon his death .... Finally, in several instances, it represented in its statements and publications that the carriers owned their routes.

      . The Missouri Approved Pattern Instruction for Conversion — Taking supports this conclusion. The instruction states:
      Your verdict must be for plaintiff if you believe:
      First, plaintiff was (here describe facts which entitled plaintiff to possession — e.g. "the owner of the watch,” "the lessee of the automobile”), and
      Second, defendant took possession of (here describe the property) with the intent to exercise some control over (here describe the property), and
      Third, defendant thereby deprived plaintiff of the right to possession of (here describe the property)
      [unless you believe that plaintiff is not entitled to recover by reason of Instruction No. _ (here insert number of affirmative defense instruction) ]. MAI No. 23.12(1) (emphasis added).

      . The trial court also noted that the majority of the allegations in Count I would be more appropriate in a claim for breach of contract.

      . Although Appellants do not qualify their pleading of "economic expectancy” with the words "valid” or "reasonable,” we liberally construe the pleading to imply such a qualification.

      . All statutory references are to RSMo (1994), unless otherwise indicated.

      . This section deals with trespass to real property.

      . This section deals with removal of fences.

      .Appellants do not contest the trial court’s finding that Suburban Newspapers is not the "alter ego” of the Journal.

      . Because it concluded that Appellants did not establish that the Journal committed a tortious act in Missouri, the trial court did not reach the due process issue of minimum contacts.

      . Respondents’ Motion to Dismiss Appellants' Appeal is denied.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Terrell HOLMES, Appellant, v. STATE of Missouri, Respondent.
    No. ED 77464.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 10, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2000.
    Application for Transfer Denied Dec. 27, 2000.
    Dave Hemingway, Asst. Sp. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Susan K. Glass, Asst. Atty. Gen., Jefferson City, for respondent.
    Before HOFF, C.J., and CRANE, J., and SULLIVAN, J.
   ORDER

PER CURIAM.

Terrell Holmes (Movant) appeals the judgment denying his Rule 24.035 motion without a hearing. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    James Patout BURNS, Appellant, v. Patricia Collins Egan BURNS, Respondent,
    No. ED 77284.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 10, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 9, 2000.
    Application for Transfer Denied Dec. 27, 2000.
    Rieran J. Coyne, St. Louis, for Appellant.

      Christopher Karlen, St. Louis, for Respondent.
    Before GARY M. GAERTNER, P.J., LAWRENCE G. CRAHAN, J., and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

James Patout Burns, Jr. appeals a decree of dissolution ordering him to pay Patricia Colling Egan Burns monthly maintenance of $3,000 and requiring him to maintain a life insurance policy for her benefit.

We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial and competent evidence in the record and is not against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


author: MOONEY, Judge.

text:
    STATE of Missouri, Respondent, v. Martiez DAVIS, Appellant.
    No. ED 76691.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 17, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2000.
    Application for Transfer Denied Dec. 27, 2000.

      Nancy L. Vincent, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for respondent.
   MOONEY, Judge.

Defendant appeals the judgment entered on his convictions for murder in the first degree, Section 565.020, RSMo.1994; armed criminal action, Section 571.015; and attempted forcible rape, Section 566.030. His points on appeal are that the trial court erred in: (1) refusing to admit expert testimony on interrogation techniques; (2) admitting defendant’s statement to police; (3) faffing to grant an acquittal because without the statement there is not enough proof to link him to the crime; (4) faffing to grant an acquittal based on the state’s failure to prove the mens rea for first-degree murder; (5) excluding rebuttal testimony regarding a condom found in his basement; and (6) refusing to dismiss the indictment against defendant.

We affirm.

FACTS

At the time of Crystal Brooks’ murder, defendant, who was nineteen, lived with his father and two brothers in a second-floor flat at 4036 Russell. He had access to the building’s common basement that had a door leading to the outside. Crystal was thirteen years old and lived with her mother at 4436 Russell.

Around sunset on the day of the murder, a neighbor heard Crystal shouting at defendant, telling him to get away and leave her alone. Near midnight that same day, Crystal was with three friends on the friends’ front porch at 4033 Russell. When told to go home, Crystal and one of her friends left, walking past defendant’s house on the way home.

Defendant was also on his front porch that night with his brother and some friends, celebrating his brother’s birthday and drinking beer. Defendant’s brother and friends left, but defendant stayed on the porch, seeing Crystal and her friend walk to Crystal’s house.

About 5:30 a.m. on March 20, 1997, Crystal’s mother noticed Crystal was missing. Crystal’s lifeless body was found lying face down in the alley behind her house with no clothing on the top part of her body and her pants and underpants pulled below her pelvic area. Crystal’s jacket was found on the roof of the garage and had her blood on it. Her shirt was found twenty-two feet from her body and had her blood on it. Her bra and tee shirt were found nearby in the front seat of an abandoned car. The bra was still clasped together in the back but the front appeared to have been torn or cut apart. The tee shirt had - Crystal’s blood on it.

The police were called, and after they left, family members and neighbors, including defendant, looked for more evidence. During this search, two of Crystal’s aunts saw dried blood on defendant’s right hand. In addition, defendant saw a towel on a garage roof near the crime scene. He jumped up, grabbed the towel, and threw it on the ground. Police returned later and seized that towel with Crystal’s blood on it and another stained towel found on defendant’s dresser.

Later that day, one of Crystal’s aunts saw defendant trying to throw away a red Cardinals jacket in a dumpster in the alley. When defendant noticed Crystal’s aunt watching him from the third-floor window of Crystal’s house, defendant retrieved the bag containing the jacket and took it back to his house.

After interviewing Crystal’s two aunts about the blood on defendant’s hands, two detectives went to defendant’s house, but he was not home. The police picked up defendant and took him to the police station on March 21,1997. He was advised of his Miranda rights and he chose to waive them. Initially, defendant told police that after the birthday celebration on his front porch, he went in the house to bed around 11:30 p.m. and did not awake until 5:00 a.m. the next morning. Defendant claimed the blood got on his hands when he retrieved the towel from the garage roof.

Police returned to defendant’s home and found a Cardinals jacket stuffed in the rafters of the basement. Tests confirmed Crystal’s blood was on that jacket. In addition, a fork with Crystal’s blood on it was found in the jacket pocket with a Steak 'n Shake receipt bearing defendant’s name. About six feet from the jacket, police found a used condom in the basement rafters containing defendant’s seminal fluid.

Defendant was booked for some outstanding traffic charges and was interviewed again by two detectives on March 22, 1997. Before the interview, defendant was read his rights and indicated that he understood them. He admitted the jacket was his and that he usually carried a fork and knife from Steak 'n Shake in his pocket. Defendant made another statement about what happened that night and agreed to make a statement on videotape. He was again advised of his rights, which he waived.

According to defendant’s statement to the police, his friend Jeff appeared about the same time as the girls walked by. Both defendant and Jeff smoked cigarettes dipped in embalming fluid. After asking whether defendant knew the girls and how old they were, Jeff went to talk to them. About five minutes later, Jeff and Crystal walked toward the side yard and defendant followed them. Jeff took defendant’s Cardinals jacket and Crystal sat on it in the backyard near the alley. Jeff kneeled in front of Crystal, and when she tried to get up, he grabbed her by the neck. Crystal accused Jeff of trying to kill her, but he denied it. Crystal sat back down on the coat and quickly jumped back up. Jeff grabbed her again and started saying, “Man, she gonna tell, man. She gonna tell!” Defendant had a fork from Steak 'n Shake in his pocket and started to hand it to Jeff but stopped. Crystal hesitated, started to get up, then laid back down again. Then Crystal said, “Oh no. No, no.” Jeff became upset and said, “Man, she’s gonna tell on both of us.” Defendant took the fork and jabbed at Crystal repeatedly.

Defendant grabbed his coat from under Crystal and ran toward his basement followed by Jeff. He put the fork back in the jacket pocket. In the basement, defendant used a towel to wipe blood off his arm. At the end of the videotaped statement, police had defendant hold his hands up to the camera to document his scratches and scrapes. Defendant also had fork tine imprints in the palm of his right hand.

The medical examiner found that the fatal wound was an incision on Crystal’s neck, and the wound was inconsistent with having been produced by a knife. Further, he declared that the fork from defendant’s jacket was “perfectly consistent” with the wounds on Crystal’s body.

The jury found defendant guilty of first-degree murder, attempted forcible rape, and armed criminal action that referenced the murder. He was acquitted of armed criminal action regarding attempted rape. As to the respective guilty verdicts, the trial court sentenced defendant to life without the possibility of probation or parole, to another life sentence, and to thirty years, to be served concurrently.

ANALYSIS

I. Expert Testimony

In his first point, defendant argues that the trial court erred in excluding expert testimony on interrogation techniques, false confessions, and coercive persuasion, presenting an issue of first impression in Missouri. Defendant offered testimony by Dr. Richard Leo, an expert in the field of interrogation psychology. Defendant contended that the jury would be aided in determining the reliability of his statements to police. The state objected and the trial court held a hearing wherein an extensive offer of proof was made. The trial court declared the testimony inadmissible since it would not aid the jury.

In the offer of proof, Dr. Leo revealed he would testify about interrogation techniques, how such techniques influence criminal suspects, and whether the techniques correlate to false confessions. In addition, he would explain to the jury how and why false confessions occur and principles to use to evaluate the reliability of a confession.

Because the trial court has discretion to allow or exclude expert testimony, we will only reverse the trial court for abuse of discretion. State v. Williams, 828 S.W.2d 894, 899 (Mo.App. E.D.1992). The trial court abuses its discretion when the ruling is clearly against the logic of the circumstances or when it is arbitrary and unreasonable. Id.

In ruling on the admissibility of expert testimony, the trial court considers whether such testimony assists the jury or if it unnecessarily diverts the jury’s attention from relevant issues. State v. Lawhorn, 762 S.W.2d 820, 822-28 (Mo. banc 1988). Further, such testimony is inadmissible if it relates to the credibility of witnesses for this constitutes an invasion of the province of the jury. Id. For example, in State v. Taylor, the Missouri Supreme Court decided that expert testimony regarding whether a rape victim was actually assaulted at the time and place she claimed improperly bolstered the victim’s story. 663 S.W.2d 235, 240-41 (Mo.1984). Expert testimony regarding a witness’s reliability in distinguishing truth from fantasy was deemed inadmissible because such opinions invade the jury’s province to make credibility determinations. Id. at 241.

In State v. Skillicorn, 944 S.W.2d 877, 892 (Mo. banc 1997), the prosecutor asked an FBI agent, “Do you have an opinion whether suspects accused of criminal activity, sir, downplay their involvement in that particular offense.” The agent answered: ‘Tes. That’s quite often the case. We call it minimizing. They minimize their involvement.” Id. The defendant challenged this testimony on two grounds: (1) it was improper testimony on issues of witness credibility, and (2) the expert testimony was on a matter within the jury’s general realm of common experience. The Court held the testimony was generic; consequently, it was not testimony “directly impugning Skillicorn’s credibility.” Id. Further, the Court held that the FBI agent’s testimony “came from his special knowledge as a career law enforcement officer, not from the realm of common experience shared by the members of the jury.” Id. The Court, however, cautiously noted that even if the admission of the FBI agent’s testimony was error, the defendant failed to show its prejudice. Id.

In this case, the offer of proof invaded the jury’s province to make credibility determinations. Dr. Leo testified as to a suspect’s thought processes when interrogated under circumstances similar to the defendant’s. Testimony that is particularized to the circumstances of the case is not generic credibility testimony; rather, it is specific credibility testimony that encroaches upon the jury’s duty to determine the reliability of defendant’s statement.

Although in Skillicom the Court upheld the witness’s expertise to offer credibility testimony, we cannot do so here. While we believe Dr. Leo’s extensive experience would equal that of an FBI agent, we do not believe that the Supreme Court’s qualified sanction of a brief foray into this perilous area is the broad authority defendant requires to validate an extensive offer of proof as to the giving of false confessions. To allow such expert testimony invades the jury’s proper realm.

Defendant’s challenge is similar to one the Missouri Supreme Court addressed regarding eyewitness identification in State v. Lawhorn, 762 S.W.2d 820, 822-23 (Mo. banc 1988). The dangers of allowing that testimony are like those presented by the testimony of Dr. Leo. The Supreme Court affirmed the trial court’s decision to exclude testimony that witnesses have difficulty identifying suspects of other races because this information is in the jury’s realm of common knowledge. Lawhorn, 762 S.W.2d at 823. The court concluded that the defendant could challenge the reliability of the identification through cross-examination. Id. This would allow the jury to determine reliability for themselves rather than depend on the representations of experts. Id.

Adapting the reasoning of the Supreme Court to this case, the fact that police interrogation may be persuasive or coercive does not leave defendant without protection if the trial court denies expert testimony on this topic. Cross-examination is an adequate tool to expose police conduct, and closing argument gives the defendant a forum to further develop his theory that interrogation techniques are coercive. The jury is capable of understanding the reasons why a statement may be unreliable; therefore, the introduction of expert testimony would be “a superfluous attempt to put the gloss of expertise, like a bit of frosting, upon inferences which lay persons were equally capable of drawing from the evidence.” Lawhorn, 762 S.W.2d at 823 (quoting State v. George, 194 Conn. 361, 481 A.2d 1068, 1075 (1984)).

The defendant had a full opportunity to cross-examine the police officers that interrogated him about their techniques. The jury heard testimony regarding the conditions of defendant’s interrogation, the length of time defendant was interrogated, the receipt and waiver of Miranda rights, and the content of the police questions and defendant’s statements. It was reasonable for the trial court to conclude that the jury could decide the issue of the statement’s reliability using its common knowledge. Consequently, the jury would not be aided by Dr. Leo’s testimony. We find no abuse of discretion; defendant’s first point is denied.

II. Defendant’s Confession

In his second point, defendant argues the trial court erred in denying his motion to suppress statements made to the police. He claims police coerced him into making a confession by questioning him for lengthy intervals, by promising leniency, and by various other tactics. He asks this court to review whether the waiver was voluntary.

A. Videotaped Statement

The law of the case doctrine provides “that a previous holding in a case constitutes the law of the case and precludes relitigation of that issue on remand and subsequent appeal.” Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 61 (Mo. banc 1999). The doctrine prevents successive direct appeals unless authorized by statute. State v. Graham, 13 S.W.3d 290, 293 (Mo. banc 2000).

This significant issue of whether the videotaped statement should have been suppressed has been conclusively litigated in State v. Davis, 980 S.W.2d 92 (Mo.App. E.D.1998). The State filed an interlocutory appeal of the trial court’s ruling to suppress defendant’s videotaped statement to police. We held that defendant made a knowing and intelligent waiver of his Miranda rights and that the police officer’s statement that no one else would see the videotape did not render the confession involuntary. Because the facts presented at trial were the same as the facts adduced at the suppression hearing, we are bound by the earlier opinion.

B. Oral Statements

We will uphold a trial court’s ruling on a motion to suppress unless there is not sufficient evidence to support the trial court’s ruling. State v. Kampschroeder, 985 S.W.2d 396, 398 (Mo.App. E.D.1999). Even if this court would have weighed the evidence differently, we may not reverse if the record supports the trial court’s ruling. Id. In reviewing the trial court’s decision, the facts and any reasonable inferences arising therefrom are to be viewed in a light most favorable to the trial court’s ruling. State v. Carter, 955 S.W.2d 548, 560 (Mo. banc 1997). It is immaterial whether there is evidence from which the trial court could have arrived at a contrary conclusion. Kampschroeder, 985 S.W.2d at 398.

At trial, defendant testified and presented evidence in his defense, claiming that he did not sleep or eat while being held by police and that his confession was coerced by physical abuse. The state presented rebuttal testimony that no physical force had been used; however, no evidence exists in the record to rebut defendant’s claims of food and sleep deprivation. The trial court was entitled to believe the officers on the issue of physical abuse. State v. Feltrop, 803 S.W.2d 1, 12 (Mo. banc 1991). Furthermore, the lack of rebuttal testimony on sleep and food deprivation does not require us to find in defendant’s favor since we must view all facts and inferences in favor of the ruling. Carter, 955 S.W.2d at 560. The trial court was in the best position to rule on the suppression of defendant’s statement, and we find substantial evidence supports that ruling. This point is denied.

III. Defendant’s motion for acquittal based on the exclusion of his statements to the police

In his third point, defendant argues that without the confession, the State has no other proof to link him to the crime and the trial court should have acquitted him. Defendant’s argument is predicated on the exclusion of his statement to the police. Because we affirm the admission of defendant’s statement, this point is denied. Further, ample physical evidence, such as the jacket, fork, condom, and bloody towel, connects defendant to the crime.

IV. Defendant’s motion for acquittal based on the state’s failure to prove the mens rea for first-degree murder

In his fourth point, defendant asserts the state’s evidence lacked proof of intent and deliberation required to prove first-degree murder. In reviewing for sufficiency, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the State and disregard all evidence and inferences to the contrary. State v. Simmons, 955 S.W.2d 729, 739 (Mo. banc 1997). We must affirm if sufficient evidence permits a reasonable juror to find guilt. State v. Storey, 901 S.W.2d 886, 895 (Mo. banc 1995).

Deliberation is defined as “cool reflection for any length of time no matter how brief.” Section 565.002(3). This element may be inferred from the circumstances surrounding the murder. State v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc 1991). Deliberation is properly inferred where the defendant had ample opportunity to terminate the crime as well as where the victim sustained multiple wounds or repeated blows. State v. Shaw, 14 S.W.3d 77, 86 (Mo.App. E.D.1999). For example, a prolonged struggle may be evidence of deliberation. State v. Johnston, 957 S.W.2d 734, 748 (Mo. banc 1997).

A wound on the inside of Crystal’s lip and hemorrhaged eyes indicated attempted suffocation, and defendant told police that Crystal was choked at two separate times. The autopsy showed that Crystal died from an “[i]ncised wound of neck.” She had several puncture wounds, scratch marks, and contusions. Furthermore, Crystal had four scratch marks that extended down the surface of her neck. On her face were four puncture marks perfectly aligned and evenly spaced.

Viewing the evidence in the light most favorable to the State, we find there was sufficient evidence to support the conviction for first-degree murder. Defendant could have stopped the attack after the first choking episode or at any other time. In light of the fact that defendant repeatedly attacked Crystal with a fork, a jury could reasonably infer that defendant deliberated upon Crystal’s death. This point of error is denied.

V. Rebuttal Testimony Regarding the Condom

In his fifth point, defendant argues the trial court abused its discretion and committed reversible error in excluding his rebuttal testimony on the condom found in the rafters of defendant’s basement. He sought to introduce evidence of another condom found near the crime scene, a condom wrapper, a smear from the condom, and bloodstained sheets from defendant’s basement. All this evidence was to bolster defendant’s theory that Jeff was the perpetrator. The trial court deemed the evidence irrelevant. The sperm on the condom was not defendant’s and it had no genetic material from Crystal. The bloody sheets did not match either defendant’s or Crystal’s blood.

“Trial courts have discretion to determine the relevance of evidence, and appellate courts will reverse that determination only upon a showing of abuse of discretion.” State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc 2000). A trial court abuses its discretion when its ruling is “clearly against the logic and circumstances before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” State v. Brown, 939 S.W.2d 882, 883-884 (Mo. banc 1997). A trial court did not abuse its discretion if reasonable persons can differ about the propriety of the trial court’s ruling. Id.

If evidence does not tend to prove or disprove any material issue, it is not admissible. State v. Umfrees, 433 S.W.2d 284, 286 (Mo. banc 1968); State v. Bowens, 964 S.W.2d 232, 238 (Mo.App. E.D.1998). It is not error for the trial court to exclude testimony that tends to create confusion and speculation. Umfrees, 433 S.W.2d at 286. In this case, the ruling of irrelevancy is supported in the record because the proffered items of evidence have no discernible connection to Jeff, Crystal, or her rape and murder. We find the trial court did not abuse its discretion; therefore, this point of error is denied.

VI. Defendant’s Motion to Dismiss the Indictment

In his final point, defendant contends that the trial court abused its discretion and committed reversible error in denying defendant’s motion to dismiss the indictment. Defendant was first indicted on May 27, 1997, and the case was assigned to Judge Forder who suppressed defendant’s videotaped confession. In State v. Davis, 980 S.W.2d 92 (Mo.App. E.D.1998), this court reversed that ruling and remanded the case. The state nolle prossed the indictment on January 12, 1999; and Defendant was re-indicted the same day. The case was assigned to Judge Forder. Under Rule 32.07(b), the State moved for a new judge, and the case was transferred to Judge Autrey. Defendant alleges that the State abused its power by dismissing and re-indicting after the time had lapsed to obtain an automatic change of judge. Defendant calls this “judge shopping.”

Under Rule 32.07(b) the State is entitled to only one timely automatic change of judge. But the prosecutor has unfettered discretion either to prosecute or to nolle pros a case before return of a verdict. State ex rel. Norwood v. Drumm, 691 S.W.2d 238, 241 (Mo. banc 1985). Evidence of the state’s motive in dismissing and re-indicting does not appear in the record; therefore, we need not decide whether the state may dismiss and re-file charges to gain an automatic right of disqualification.

Judgment affirmed.

SIMON and SULLIVAN, JJ., concur.

      . All statutory references are to RSMo. (1994).

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

      . After an extensive search for Jeff, the police concluded he probably does not exist.

      . In Unites States v. Hall, the Seventh Circuit allowed expert testimony on coercive police interrogation and the incidence of false confessions under the Daubert standard. 93 F.3d 1337 (7th Cir.1996). But see State v. Ritt, 599 N.W.2d 802 (Minn.1999) excluding such testimony under the Frye test and State v. Tetlier, 526 A.2d 941 (Me.1987) excluding such testimony under Daubert.


author: MARY K. HOFF, Chief Judge.

text:
    HOME BUILDERS ASSOCIATION OF GREATER ST. LOUIS, INC., Plaintiff/Appellant, v. CITY OF WILDWOOD, Defendant/Respondent.
    No. ED 77573.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 17, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2000.
    Application for Transfer Denied Dec. 27, 2000.

      Hush & Eppenberger, LLC, JoAnn Tracy, Kathryn Koch, St. Louis, for appellant.
    Daniel G. Vogel, Michael P. Downey, Stinson, Mag & Fizzell, PC, St. Louis, for respondent.
   MARY K. HOFF, Chief Judge.

Home Builders Association of Greater St. Louis, Inc. (HBA) appeals the trial court’s Judgment and Order dismissing HBA’s petition challenging Ordinance No. 555 enacted by the City of Wildwood (Wildwood) in August 1999 on the ground it violates Section 89.410 RSMo Cum.Supp. 1999, as amended effective August 28, 1999. Specifically, the trial court found HBA lacked standing to pursue its claims because it lacked a “personal stake in the application of’ Wildwood’s ordinance. We reverse on the grounds HBA has standing to pursue the claims.

In relevant part the statute and ordinance, effective as of August 28, 1999, address requirements for the development of subdivisions, and in particular specify financial security measures, such as escrows and bonds, imposed on those engaged in developing a subdivision. HBA urges the ordinance provisions violate the statutory provisions in several respects. Specifically, HBA seeks declaratory and injunctive relief, as well as an award of reasonable attorney’s fees and costs, based on allegations Wildwood was “unlawfully enforcing” the challenged ordinance provisions by requiring post-completion maintenance deposits or escrows, which caused “economic harm” and “irreparable harm” to the HBA “and its constituent members.” HBA also requests a declaration that the amended statute applies to escrow amounts paid by HBA’s members before August 28, 1999, “as security for the construction and installation of improvements” within Wildwood, and held by Wildwood on that date. HBA alleges Wildwood was not complying with the statutory requirement that such escrow funds be released within thirty days of “completion of each category of improvements or utility work, minus a maximum retention of five percent to be released” when the entire improvement or utility work was finished.

Wildwood moved to dismiss these claims. Wildwood first argued HBA lacked standing to pursue the claims because Section 89.410.4 specifically permits only an “owner or developer” to pursue a civil action, HBA is not an “owner or developer,” declaratory relief may not circumvent a statutory remedy, and injunc-tive relief is not available when there is an adequate remedy at law. Second, Wild-wood argued the case was not ripe and no actual controversy existed because HBA failed to allege how and on whom the ordinance had been enforced. Third, Wildwood contended HBA failed to state a claim for relief in that Section 89.410.5 expressly excludes the regulation of maintenance bonds from the requirements of Section 89.410. Finally, Wildwood argued the statute as amended effective August 28, 1999, as well as the retroactive application of the statute sought by HBA, violated the Missouri Constitution.

After hearing argument, taking judicial notice of the file, and considering the ex-Mbits, the trial court dismissed the case upon finding “even giving the Declaratory Judgment Act a broad and liberal reading, ... [HBA has] no personal stake in the application of [the ordinance and c]learly ... ha[s] no standing TMs appeal followed.

In its sole point, HBA urges the trial court erred in dismissing the petition because HBA has standing to pursue its claims in a representative capacity in that its members have standing to bring the claims, the interests HBA seeks to protect are germane to HBA’s purposes, and no individual member of HBA needs to participate in the litigation.

Wildwood urges the trial court’s ruling was correct for three reasons. First, the dismissal was proper because HBA is not an “owner or developer” as specified in Section 89.410.4. Second, there is no case or controversy and the matter is not ripe because there has not been an attempt to enforce the ordinance’s maintenance bond requirement. Finally, HBA failed to state a claim upon which relief can be granted in that Section 89.410.5 expressly exempts maintenance guarantees from the provisions of Section 89.410.

Our review of whether a litigant has standing to pursue claims is de novo and we do not defer to the trial court’s order. Switzer v. Hart, 957 S.W.2d 512, 514 (Mo.App. E.D.1997). We consider the petition, along with any other non-eontest-ed facts accepted as true by the parties at the time the motion to dismiss was argued. Id. We then determine standing as a matter of law on the basis of the undisputed facts. Id.

The Umted States Supreme Court has recogmzed that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the orgamzation’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 338, 344, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). The Missouri Supreme Court uses the same test to ascertain an orgamzation’s standing to pursue litigation on behalf of its members. Missouri Health Care Ass’n v. Attorney General, 953 S.W.2d 617, 620 (Mo. banc 1997); Missouri Outdoor Adver. Ass’n, Inc. v. Missouri State Highways and Transp. Comm’n, 826 S.W.2d 342, 344 (Mo. banc 1992).

To satisfy the first element we must decide whether the organization’s members may themselves bring an action for declaratory and injunctive relief. Missouri Health Care Ass’n, 953 S.W.2d at 620. Specifically, we must ascertain whether there is a justiciable controversy. Id.; Ferguson Police Officers Ass’n v. City of Ferguson, 670 S.W.2d 921, 924-25 (Mo.App. E.D.1984). “A justiciable controversy exists where the plaintiff has a legally protectable interest at stake, a substantial controversy exists between parties with genuinely adverse interests, and that controversy is ripe for judicial determination.” Missouri Health Care Ass’n, 953 S.W.2d at 620.

We find HBA’s developer members have a legally protectable interest in that an interest in doing business free from the constraints of an unlawful ordinance deserves legal protection. See id. Here, HBA alleges it is “a not-for-profit Missouri Corporation ... with over 1,100 members comprised of builders, developers, and others associated with the shelter industry in the St. Louis metropolitan area, including ... the countfy] of St. Louis”; and Wild-wood is located in St. Louis County. Its members, HBA further alleges, “are directly affected by mumcipal requirements pertaining to escrow or other deposits securing improvement and utility construction and post-construction maintenance.” Through this lawsuit HBA is seeking to protect its developer members’ interest in doing business as subdivision developers free from unlawful financial constraints allegedly set forth in Wildwood’s challenged ordinance.

Furthermore, a substantial controversy exists between the HBA’s developer members and Wildwood, who have genuinely adverse interests, and that controversy is ripe for judicial determination. “A ripe controversy exists if the parties’ dispute is developed sufficiently to allow the court to make an accurate determination of the facts, to resolve a conflict that is presently existing, and to grant specific relief of a conclusive character.” Missouri Health Care Ass’n, 953 S.W.2d at 621. Importantly, “[a]n injury need not have occurred prior to bringing a declaratory action” because one of the main purposes of declaratory relief “is to resolve conflicts in legal rights before a loss occurs.” Ferguson Police Officers Ass’n, 670 S.W.2d at 925. In fact, case law supports a determination a challenge to a city’s authority to impose certain regulations may be ripe for judicial determination prior to compliance with the city’s regulations. State ex rel. Whiteco Indus., Inc. v. Bowers, 965 S.W.2d 203, 206-07 (Mo.App. E.D.1998). Finally, we keep in mind that “[t]he Declaratory Judgment Act is peculiarly suited to interpreting and declaring the validity of statutes [and] ordinances.” Ferguson Police Officers Ass’n, 670 S.W.2d at 925.

Here, HBA, as representative of its members, seeks a determination whether certain financial requirements for subdivision development set forth in Wildwood’s ordinance and implemented by Wildwood prior to amendment of the statute violate the requirements set forth in an amended state statute. Wildwood counters that the challenged ordinance provisions do not violate the statute, which by its terms exempts a city’s maintenance bonds from the statute’s requirements, and the statute does not apply retroactively to the deposits paid by developers and held by Wildwood on and before August 28, 1999. The challenged ordinance provisions are clearly directed at HBA’s developer members and are designed to regulate financially the way those members engage in developing subdivisions within Wildwood. There is no speculation that HBA’s developer members are or will be immediately adversely affected by Wildwood’s collection of the allegedly improper amounts for subdivision developments within that city. See Akin v. Director of Revenue, 934 S.W.2d 295, 298 (Mo. banc 1996). In light of the challenge presented and the present effect of the ordinance’s challenged provisions on HBA’s developer members, an immediate, concrete dispute exists that can be resolved by a specific conclusive decree. Therefore, HBA’s members would have standing to pursue the claims presented in this lawsuit.

Additionally, the interests HBA seeks to protect through this litigation, i.e., its members’ business and financial interests in developing subdivisions, are germane to HBA’s purpose. The preservation of members’ “business opportunities and economic well-being” may be germane to a trade association’s purposes so as to confer such an association with standing to pursue a lawsuit on behalf of its members. Real Estate Bd. v. City of Jennings, 808 S.W.2d 7, 9 (Mo.App. E.D.1991).

Finally, individual members of the HBA need not participate individually in this litigation to obtain the requested relief. A request for prospective relief usually does not require the participation of an organization’s members in the lawsuit, although a request for monetary relief usually does require membership participation. Ferguson Police Officers Ass’n, 670 S.W.2d at 925-26. Here, the requests for relief are prospective, and not monetary. A court may decide whether the statute applies to the challenged ordinance provisions and to the amounts on deposit with Wildwood as of August 28,1999, without each member’s presence. Therefore, HBA’s members do not need to participate personally in this lawsuit.

Wildwood urges HBA cannot have standing to pursue this litigation because Section 89.410.4 limits those who may pursue a civil action to “[a]ny owner or developer aggrieved by the city’s ... failure to” comply with the statute, and HBA is not an “owner or developer.” Section 89.410.4 states:

If the city, town or village has not released the escrow funds within thirty days as provided in this section, the city, town or village shall pay the owner or developer in addition to the escrow funds due the owner or developer, interest at the rate of one and one-half percent per month calculated from the expiration of the thirty-day period until the escrow funds have been released. Any owner or developer aggrieved by the city’s, town’s or village’s failure to observe the requirements of this section may bring a civil action to enforce the provisions of this section. In any civil action or part of a civil action brought pursuant to this section, the court may award the prevailing party or the city, town or village the amount of all costs attributable to the action, including reasonable attorneys’ fees.

(emphasis added). In support of its position that an organization does not have standing to sue when a statute specifies who may bring a lawsuit without explicitly mentioning organizations or associations, Wildwood cites Missouri Ass’n of Counties v. Wilson, 3 S.W.3d 772, 776-77 (Mo. banc 1999); Fort Zumwalt Sch. Dist. v. State, 896 S.W.2d 918, 921 (Mo. banc 1995); Sauter v. Schnuck Mkts., Inc., 803 S.W.2d 54, 55 (Mo.App. E.D.1990); and Missouri Health Care Ass’n v. Missouri Health Facilities Review Comm., 777 S.W.2d 241 (Mo.App. W.D.1989). We find those cases distinguishable.

In Missouri Ass’n of Counties, supra, and Fort Zumwalt Sch. Dist., supra, the Missouri Supreme Court held the organizational plaintiffs did not have standing to enforce alleged violations of the Hancock Amendment because they had not alleged they were taxpayers and the Hancock Amendment specified that “any taxpayer” had standing to enforce the Hancock Amendment’s provisions. Missouri Ass’n of Counties, 3 S.W.3d at 776; Fort Zumwalt Sch. Dist., 896 S.W.2d at 921. In Missouri Ass’n of Counties, the plaintiffs were a not-for-profit corporation of Missouri counties, and several Missouri political subdivisions. Missouri Ass’n of Counties, 3 S.W.3d at 776. In Fort Zumwalt Sch. Dist., the organizational plaintiff was a Missouri school district. Fort Zumwalt Sch. Dist., 896 S.W.2d at 921.

We do not read these holdings as prohibiting an organization from representing the interests of its members, if the members satisfy a statutory provision enumerating who may pursue litigation. Rather, with respect to organizational standing in those cases, we understand our Supreme Court to require an allegation that a plaintiff falls within any class of person that is statutorily specified as able to pursue litigation. Here, HBA alleges that its members include developers. A developer is one of the statutorily specified “aggrieved” persons able to pursue a civil action for violation of the statute. Therefore, the Missouri Ass’n of Counties and Fort Zumwalt Sch. Dist. cases are not dispositive of HBA’s standing to pursue the present claims.

In Missouri Health Care Ass’n, supra, the plaintiff was “a not-for-profit Missouri corporation composed of operators of Missouri long-term health-care providers.” Missouri Health Care Ass’n, 777 S.W.2d at 242-43. The Western District held that the plaintiff organization did not have the right to appeal a decision by the Missouri Health Facilities Review Committee (Committee) regarding a health care facility’s certificate of need. Id. at 243-44. The Committee first denied a health care facility’s application for a certificate of need to build a 210 bed nursing home. Id. at 242. The Committee subsequently decided the health care facility applicant was exempt from the certificate of need requirement. Id. The organizational plaintiff had participated as an intervenor in the proceedings before the Committee, and filed a petition for review of the Committee’s decision exempting the applicant from the certificate of need requirement. Id. The Western District found the organizational plaintiff did not become a party to the proceedings through its members’ statutory “affected person” status, and therefore could not appeal pursuant to a statute limiting appeals to the applicant or the local health systems agency. Id. at 243. The court further held the organizational plaintiff did not satisfy the requirements for pursuing review under the Administrative Procedure and Review Act. Id. at 243-44.

Despite Wildwood’s argument to the contrary, that case does not preclude consideration of an organization’s standing to pursue claims on behalf of its members when a statute specifies who may proceed. There is no indication how the Western District would hold if the organizational plaintiff had pursued claims on behalf of applicants or applicants’ interests, rather than on behalf of those health care facilities opposed to an applicant. In fact, the court expressly noted with respect to the plaintiffs organizational standing that “[t]he crucial issue is whether the members of the Association have standing in their own right” to pursue the claims. Id. at 242 n. 2. Here HBA has clearly alleged its membership includes developers, who are explicitly entitled to pursue claims under the statute, and HBA clearly is pursuing claims supportive of the interests of developers wanting to work on subdivisions within Wildwood.

Moreover, in an earlier case the Western District expressly determined that the same organization, the Missouri Health Care Association, had standing to pursue in its representative capacity a petition for writ of prohibition regarding the Committee’s consideration of a certificate of need. State ex rel. Missouri Health Care Ass’n v. Missouri Health Facilities Review Comm., 768 S.W.2d 559, 561-62 (Mo.App. W.D.1988). The Western District en banc subsequently overruled that case to the extent it

expresse[d] the rationale that the status of competitor affected person suffices per se to invest standing for a writ of prohibition, not only to protect the interest the statute confers on a competitor to present its views to the licensure committee at a public hearing, but also as to any phase of the adjudication of a certificate of need application.

West County Care Center, Inc. v. Missouri Health Facilities Review Comm., 773 S.W.2d 474, 476-77 (Mo.App. W.D.1989). That decision, however, did not overrule the earlier decision to the extent it addressed an organization’s standing to pursue claims on behalf of its members when a statute specifies who may litigate a matter.

Finally, the Sauter, supra, case is inap-posite because it does not address an organizational plaintiffs standing. Sauter, 803 S.W.2d at 55. Instead, the court in that case concluded that only a personal representative of a deceased individual, and not that individual’s heirs, has standing to bring a survival action. Id.

HBA has standing to pursue its claims on behalf of its members. Because this matter is reversed and remanded, we will leave for the trial court’s consideration, if appropriate, the other matters raised in Wildwood’s motion to dismiss.

Reversed and remanded for further proceedings.

MARY RHODES RUSSELL, J„ and ROBERT E. CRIST, S.J., concur.

      . All subsequent statutory citations are to RSMo Cum.Supp. 1999, unless otherwise noted.


text:
    Steven R. GRANT, Appellant, v. STATE of Missouri, Respondent.
    No. ED 77280.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 17, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2000.
    Application for Transfer Denied Dec. 27, 2000.
    Mary S. Choi, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
    Before ROBERT G. DOWD, Jr., P.J., MARY RHODES RUSSELL, J., and RICHARD B. TEITELMAN, J.
   ORDER

PER CURIAM.

Steven R. Grant appeals from a judgment denying, without an evidentiary hearing, his Rule 29.15 motion for post-conviction relief.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. The motion court’s judgment is based on findings and conclusions that are not clearly erroneous. Rule 29.15(k). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum, for their information only, setting forth the reasons for this order.

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


author: RICHARD B. TEITELMAN, Judge.

text:
    Janet GROOMS, Individually and as Personal Representative of the Estate of Harold Grooms, Appellant, v. GRANGE MUTUAL CASUALTY COMPANY, Respondent.
    No. ED 77337.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 24, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2000.
    Application for Transfer Denied Dec. 27, 2000.

      Michael W. Blanton, Blue Springs, Lisa D. Krempasky, St. Louis, for appellant.
    Beth C. Boggs, Victor T. Avellino, Boggs, Backer & Bates, St. Lords, for respondent.
   RICHARD B. TEITELMAN, Judge.

Appellant Janet Grooms appeals an order entered in the Circuit Court of the City of St. Louis setting aside a default judgment that the court had previously entered in her favor against Respondent Grange Mutual Casualty Company. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 15, 1998, Appellant Janet Grooms filed a petition in the Circuit Court of the City of St. Louis stating claims for breach of contract, negligence and bad faith against Respondent Grange Mutual Casualty Company (hereinafter “Grange Mutual”). Specifically, Appellant alleged that she and her husband were involved in a series of two automobile collisions on April 15, 1996, that resulted in severe injuries to Appellant and the death of her husband. She alleged that Grange Mutual was her insurer at the time of the collisions, that she had complied with all terms of her policy of insurance with Grange Mutual, that she had made claims against her policy with Grange Mutual for uninsured and underinsured coverage, and that Grange Mutual had denied these claims and had failed to negotiate a settlement in good faith.

On May 5, 1998, a copy of Appellant’s summons and petition were served upon the Director of the Department of Insurance in Jefferson City, Missouri (hereinafter “the Director”). However, the Director found the Summons and Petition to be insufficient and immediately returned them to Appellant without forwarding a copy of either to Grange Mutual. In his letter of May 5, 1998, to Appellant’s counsel returning the documents, the Director stated, “The Department will endeavor to effect service of process pursuant to statute when the above defects are cured and the corrected documents are served on us.”

The alleged defects were never cured by Appellant, nor were any further pleadings or summons sent by Appellant to the Department of Insurance.

Grange Mutual did not file an answer to Appellant’s petition and on July 17,1998, a default judgment was entered in favor of Appellant against Grange Mutual on Counts I, II and III. Appellant voluntarily dismissed Count IV against Grange Mutual without prejudice.

On September 7, 1999, upon learning of the default judgment, Grange Mutual filed a Motion to Set Aside the Default Judgment. It based its motion on the fact that service was defective and improper, so that the default judgment was void due to lack of personal jurisdiction over Grange Mutual. After oral argument and the submission of briefs, the trial court issued a written order granting the Motion.

Appellant now argues that the trial court abused its discretion in setting aside the default judgment because (1) service was valid to confer jurisdiction in that service was complete upon delivery of the summons and petition to Grange Mutual’s agent as designated by Section 375.906, RSMo 1994; and (2) Appellant’s action was not solely an action on a policy of insurance, in that it included an independent tort claim of bad faith.

DISCUSSION

Before considering the merits of Appellant’s appeal, we must first consider our jurisdiction. “Finality of a judgment is a jurisdictional prerequisite, and no appeal lies absent a final judgment.” Continental Basketball Ass’n v. Harrisburg Professional Sports, Inc., 947 S.W.2d 471, 478 (Mo.App. E.D.1997). An appeal will not lie from an order setting aside a default judgment within thirty days after entry of judgment because during the thirty-day period, “a default judgment is ‘within the breast of the court’ and not yet final.” Klaus v. Shelby, 4 S.W.3d 635, 637 (Mo.App. E.D.1999) (citation omitted). In the case at bar, Grange Mutual moved to set aside the default judgment more than thirty days after it was entered, and the trial court’s order setting aside the default judgment was entered over three months later. Therefore, Appellant may appeal the trial court’s order. See Casper v. Lee, 245 S.W.2d 132, 135, 362 Mo. 927 (Mo.1952) (citation omitted).

The appeal at bar raises questions of law that we review independently, rather than for abuse of discretion, because the issues focus on the trial court’s finding that the default judgment was void for lack of jurisdiction. Cook v. Polineni, 967 S.W.2d 687, 690 (Mo.App. E.D.1998).

I

Appellant first argues that the trial court erred in granting Grange Mutual’s Motion to Set Aside Default Judgment on the basis that service was invalid to confer personal jurisdiction over Grange Mutual, because service was complete upon delivery of the summons and petition to Grange Mutual’s agent as designated by Section 375.906, RSMo.1994, and was therefore valid to confer jurisdiction. We disagree.

No dispute exists regarding whether or not Appellant complied with Section 375.906 in deliveiing the summons and petition to the Director. Neither do the parties dispute that the Director failed, as is required by Section 375.261 and Rule 54.15(b), to mail a copy of the summons and petition to Grange Mutual.

This Court has previously held that both Rule 54.15 and Section 375.261, RSMo 1994, require that the Director mail to the defendant a copy of the summons and petition by registered or certified mail with return receipt signed by the addressee. Schuh Catering, Inc. v. Commercial Union Ins. Co., 932 S.W.2d 907, 908 (Mo.App. E.D.1996). Rule 54.20 establishes the proof that must be presented to the court to establish that the defendant has in fact been notified of the pendency of the action. Id. “In the absence of proof of service mandated by the Rule the court lacks the proof established by the Supreme Court as necessary to determine that the court has jurisdiction of the person of the defendant.” Id., citing Industrial Personnel Corporation v. Corcoran, 643 S.W.2d 816 (Mo.App.1981).

Though the record in the case at bar establishes that the Appellant served the Director with a petition and summons, the record does not reflect that the Director then served Grange Mutual. In the absence of such proof, the trial court lacked jurisdiction over Grange Mutual unless Grange Mutual consented to such jurisdiction or waived the objection to personal jurisdiction. The record is devoid of evidence indicating consent or waiver.

Valid service of process is a prerequisite to in personam jurisdiction. Jones v. Fliteline Motors, Inc., 809 S.W.2d 179, 181 (Mo.App. W.D.1991). “Failure to comply with statutory requirements governing process deprives the court of authority to adjudicate.” Id. (citations omitted). When a court enters judgment when no valid personal jurisdiction has been obtained over the defendant, the judgment is void. Id.

The trial court lacked jurisdiction over Grange Mutual when it entered the default judgment in Appellant’s favor. Therefore, the trial court did not err in setting aside the default judgment. Point denied.

II

Appellant next argues that the trial court erred in granting Grange Mutual’s Motion to Set Aside Default Judgment on the basis that service was not binding under Section 375.906, with regard to an action on a policy of insurance, because Appellant’s action was not solely an action on a policy of insurance in that Appellant’s petition included an independent tort claim of bad faith.

In light of the holding in Schuh Catering, Appellant’s argument is devoid of merit. Section 375.906(4) requires, as do Section 375.261 and Rule 54.15, that the Director forward process to the defendant to effectuate service of process. Appellant does not dispute that the Director failed to forward the petition and summons to Grange Mutual, and thus failed to notify Grange Mutual of the pending action against it. As such, the trial court lacked jurisdiction over Grange Mutual and did not err in setting aside the default judgment. Point denied.

The order of the trial court setting aside the default judgment is affirmed.

ROBERT G. DOWD, Jr., P.J. and MARY RHODES RUSSELL, J„ concur.

      . All further statutory references are to RSMo 1994 unless otherwise indicated.

      . We note further that while Rule 74.05(d) provides that motions to set aside default judgment should be filed within one year, this case involves a question of trial court jurisdiction over Grange Mutual, and not a "meritorious defense” and “good cause,” as contemplated by the rule. A court’s judgment to grant or to deny a motion to set aside a default judgment is independent of the underlying judgment. See Moore v. Baker, 982 S.W.2d 286, 288 (Mo.App. W.D.1998); Kueper v. Murphy Distributing, 834 S.W.2d 875, 878 (Mo.App.1992); Clark v. Brown, 794 S.W.2d 254, 256 (Mo.App.1990). A judgment entered against a party by a court lacking personal jurisdiction over such party is void. Shapiro v. Brown, 979 S.W.2d 526, 528 (Mo.App. E.D.1998) (citation omitted). "A default judgment, being void due to lack of jurisdiction, remains void forever, and any kind of proceeding to cancel it is proper.” Id. See, also Worley v. Worley, 19 S.W.3d 127, 128 (Mo. banc 2000), in which the Missouri Supreme Court recently considered a case in which a party sought to set aside a default because of improper service of process ore than two years after the judgment was entered, determining that a default judgment entered without jurisdiction may be attacked collaterally.

      .Both parties have stated that our standard of review is for abuse of discretion. This assertion is incorrect. Rule 74.05(d) provides, in pertinent part, as follows:
      Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside. The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment. Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process.
      Thus, the trial court generally must determine whether a defendant has pled a meritorious defense or shown good cause, and we subsequently review that determination for an abuse of discretion. In the case at bar, however, the trial court was asked to discern whether or not Grange Mutual received valid service of process. The determination of jurisdiction is a question of law that we consider de novo. See Laser Vision Ctrs., Inc. v. Laser Vision Ctrs. Int’l, SpA, 930 S.W.2d 29, 31 (Mo.App. E.D.1996).

      . All further statutory references are to RSMo 1994 unless otherwise indicated.

      . Further, we note that Grange Mutual raised its challenge to personal jurisdiction at the first possible instance. As so aptly quoted by Judge Smith in Schuh Catering, "Having once hoisted the flag at the beginning of the journey a litigant over whose person a court lacks jurisdiction need not continuously wave the flag at every way station along the route.” Schuh Catering, Inc. v. Commercial Union Ins. Co., 932 S.W.2d at 908, citing Greenwood v. Schnake, 396 S.W.2d 723, 726 (Mo.1965).


text:
    Roger WILSON, Claimant/Respondent, v. HARVARD INDUSTRIES, Employer/Appellant.
    No. ED 77771.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 24, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 21, 2000.
    Application for Transfer Denied Dec. 27, 2000.
    Brian M. Mclnnis, St. Louis, for appellant.
    Suzanne M. Besnia, Julie Ludlum, Treasurer of Missouri, St. Louis, for respondent.
    Before ROBERT G. DOWD, P.J., and MARY RHODES RUSSELL and RICHARD B. TEITELMAN, JJ.
   ORDER

PER CURIAM.

Harvard Industries (Employer) appeals from a final award of the Labor and Industrial Relations Commission (Commission) which affirmed the award of the Administrative Law Judge (ALJ) awarding Roger Wilson (Claimant) $721,096.92 for his medical bills and finding him permanently and totally disabled. Employer asserts the Commission erred (1) because there was insufficient evidence to find the accident was not the result of an idiopathic fall, and (2) in awarding future medical payments. We affirm.

Claimant’s Motion to Strike Employer’s brief that was taken with this case is denied. Thus, we have reviewed the briefs of the parties, the legal file, and the transcript. An opinion would have no prece-dential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth reasons for this order pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Alan ECHOLS, Appellant.
    No. WD 57928.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.
    Rehearing Denied Dec. 26, 2000.
    John P. O’Connor, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
    Before LOWENSTEIN, P.J., LAURA DENVIR STITH and NEWTON, J.J.
   ORDER

PER CURIAM.

Appellant Echols appeals from his conviction for first-degree murder. In his sole point on appeal, Echols argues that because the court deleted a portion of his videotaped confession, the jury was unable to assess his mental state and thus he was denied his constitutional rights to due process and to present a defense. Affirmed, Rule 30.25(b).