author: JOSEPH M. ELLIS, Judge.

text:
    Jerald GROSSMAN, et ux., Appellant, v. Steve ST. JOHN, et ux., Respondent.
    No. WD 71882.
    Missouri Court of Appeals, Western District.
    Nov. 2, 2010.

      Alan M. Dietchman, for Appellant.
    Salvatore J. Mirabile, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, ALOE AHUJA, Judge and KAREN KING MITCHELL, Judge.
   JOSEPH M. ELLIS, Judge.

Jerald and Jilana Grossman (the Gross-mans) appeal from the trial court’s judgment denying their petition for injunctive relief and damages after their neighbors, Steve and Vicki St. John (the St. Johns) erected a fence on the Grossmans’ property. We reverse the trial court’s judgment.

The Grossmans lived in their current home since 1988. In 1994, the Grossmans erected a six-foot privacy fence around a portion of their backyard, leaving nine feet of their property in the rear excluded from the fence. This area of property is now the area in dispute.

At trial, Jerald Grossman testified that they excluded the disputed area because a culvert and numerous trees made it difficult to build a fence in a straight line along the property line. In 2003, the fence was destroyed by a tornado but was replaced along the same line. Jerald Grossman testified that he maintained the disputed area of property until 2004 when the St. Johns moved into their house, which was directly behind the Grossmans’ property. From 2004 on, the St. Johns maintained the property.

As soon as the St. Johns moved into their home, they cleared out debris from the disputed area and laid sod on their backyard and on the disputed area of property. Additionally, during the first four years they lived there, they put up concrete benches, lights, bushes, and small trees on the disputed area. The St. Johns also removed a tree from the disputed area. Steve St. John testified at trial that the Grossmans never said anything to him or his wife about maintaining the area or placing objects on the area, and the St. Johns never asked for permission to engage in these actions on the property in dispute.

In August 2008, the St. Johns erected a fence around their backyard and the disputed area. Despite attempts to talk with the Grossmans about attaching onto the Grossmans’ fence, the St. Johns were unable to reach the Grossmans and began erecting the fence. At trial, Vicki St. John testified that when the fence was being constructed, the Grossmans’ son had asked a worker not to touch the Grossmans’ fence. Accordingly, Vicki St. John testified that they built their fence approximately five inches away from the Gross-mans’ fence. The St. Johns maintained that when they were taking care of the disputed property and when they built their fence, they were not aware that the property belonged to the Grossmans but only knew that there was an easement affecting the area. However, the property survey entered into evidence at trial showed the disputed area belonged to the Grossmans.

On March 16, 2009, the Grossmans filed a petition for an injunction and damages and contended that the St. Johns trespassed on their property. The St. Johns answered and filed a counter-claim alleging damages of $1,690 for maintenance and repairs of the property in dispute. After a bench-trial, the trial court entered judgment in favor of the St. Johns on the Grossmans’ petition and entered judgment in favor of the Grossmans on the St. Johns’ counter-claim. The Grossmans filed a motion to amend and a motion for a new trial, which were denied.

The Grossmans now appeal and contend that the trial court’s judgment was erroneous because it was against the weight of the evidence when the undisputed evidence was that the St. Johns erected a fence on the Grossmans’ property without authority or permission. The St. Johns have not appealed the judgment on their counterclaim.

We affirm a court-tried judgment “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 80, 32 (Mo. banc 1976). In determining the sufficiency of the evidence, we “accept as true the evidence and inferences from the evidence that are favorable to the trial court’s decree” and we disregard all contrary evidence. Watson v. Mense, 298 S.W.3d 521, 526 (Mo. banc 2009). Further, we exercise caution when setting aside a judgment on the ground that it is against the weight of the evidence and only do so with a firm belief that the judgment is wrong. Murphy, 536 S.W.2d at 32.

“Trespass is the unauthorized entry by a person upon the land of another, regardless of the degree of force used, even if no damage is done, or the injury is slight.” Ogg v. Mediacom, L.L.C., 142 S.W.3d 801, 807 (Mo.App. W.D.2004) (internal quotation omitted). Liability for trespass exists “whether or not [the trespass was] done in good faith and with reasonable care, in ignorance, or under mistake of law or fact.” Kitterman v. Simrall, 924 S.W.2d 872, 878 (Mo.App. W.D.1996). “In Missouri consent to trespass may be implied from conduct.” Sinopole v. Morris, 743 S.W.2d 81, 86 (Mo.App. E.D.1987). “Implied consent may be shown from custom, usage or conduct, and it continues until revoked....” St. Louis County v. Stone, 776 S.W.2d 885, 889 (Mo.App. E.D.1989).

On appeal, the St. Johns contend that the Grossmans implicitly consented to the St. Johns’ actions on the disputed property. Jerald Grossman testified that he and his wife knew that the St. Johns put solar lights, plants, and concrete benches on the disputed property but did not ask them to remove the items because “[i]t wasn’t bothering us ... we just let them use it.” Because the Grossmans were aware that the St. Johns were using and maintaining their property and never objected to such conduct, their consent to such use and maintenance was implied.

Nonetheless, as stated supra, implied consent continues until revoked. Id. Further, “[b]oth entering land wrongfully and entering land with consent or license and exceeding the scope of that consent or license constitute a trespass.” McNamee v. Garner, 624 S.W.2d 867, 868 (Mo.App. E.D.1981). “[T]here is no trespass until ... the person is requested to leave by an agent or representative of the owner or possessor and refuses to do so.” St. Louis County, 776 S.W.2d at 888.

While the Grossmans impliedly consented to the St. Johns’ use and maintenance of the property, it cannot be inferred or implied that they consented to the construction of the St. Johns’ fence. Once the St. Johns began erecting their fence, the previous implied consent was exceeded in scope. Moreover, on September 24, 2008, the Grossmans’ attorney wrote to the St. Johns requesting they remove the fence from the Grossmans’ property. At that point, the St. Johns had been asked to leave the property and refused to do so.

In addition, it cannot be inferred that the trial court entered judgment for the St. Johns because it found that the Grossmans suffered no damages. For trespass, “the law simply presumes that damage resulted.” Simpkins v. Ryder Freight Sys., Inc., 855 S.W.2d 416, 422 (Mo.App. W.D.1993). Accordingly, the proof of trespass entitles the victim to damages. If there is no actual “present loss of any measurable kind, ... nominal damages are recoverable.” Id. at 423. On the other hand, actual damages must be proven. Id. In this case, evidence of actual damages was presented.

Accordingly, the trial court’s judgment in favor of the St. Johns on the Grossmans’ petition seeking an injunction and damages was against the weight of the evidence and was erroneous. The trial court’s judgment on the Grossmans’ petition is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

All concur.

      . This testimony was disputed at trial and Jerald Grossman testified that the St. Johns’s fence was built only one inch away from their fence.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Nicholas MONTOYA, Respondent, v. A-1 MUFFLERS, INC., Appellant.
    No. WD 71773.
    Missouri Court of Appeals, Western District.
    Nov. 2, 2010.
    Patrick McGrath, Kevin Weakley, Aaron Schwartz, Overland Park, KS, for Appellant.
    Patrick Reavey, Kansas City, MO, for Respondent.
    Before VICTOR C. HOWARD, P.J., THOMAS H. NEWTON, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

A-l Mufflers, Inc. appeals the trial court’s judgment awarding compensatory and punitive damages for Mr. Nicholas Montoya on a claim for wrongful termination. For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).


text:
    Churon E. ELAM, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71413.
    Missouri Court of Appeals, Western District.
    Nov. 2, 2010.
    Frederick J. Ernst, Assistant Appellate Defender, Kansas City, MO, for Appellant.
    Chris Koster, Attorney General, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

This is an ineffective assistance of counsel case. The appellant argues that his attorneys were ineffective in that they failed to (1) object to a victim’s in-court identification of the defendant; (2) raise as an appellate issue that a photographic lineup used by the police was unduly suggestive; (3) cross-examine certain witnesses on their allegedly inconsistent and/or incomplete statements; and (4) interview and call a certain other witness. We hold that the appellant received competent assistance from his attorneys. Therefore, we affirm. Rule 84.16(b).


author: ROBERT G. DOWD, JR., Judge.

text:
    Thomas CHANEY, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93798.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 2, 2010.

      Margaret M. Johnston, Woodrail Cen-tre, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Mary H. Moore, Asst. Attorney General, Jefferson City, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Thomas Chaney (“Movant”) appeals from the motion court’s denial of his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Movant’s sole argument is the motion court clearly erred in denying his Rule 24.035 motion for post-conviction relief because his guilty plea was entered in an unknowing, involuntary, and unintelligent manner in that his attorney was ineffective for failing to inform him that one of the counts of first-degree child molestation should have been charged as a class C instead of a class B felony. We find the motion court’s findings of fact and conclusions of law are not clearly erroneous and affirm.

Movant pleaded guilty to one count of the class A felony of sexual exploitation of a minor, Section 573.023, RSMo 2000, and one count of the class B felony of first-degree child molestation, Section 566.067. In a separate case, Movant pleaded guilty to one count of the class B felony of first-degree child molestation, Section 566.067. All of the pleas were taken together. Movant was sentenced to life in prison for the sexual exploitation of a minor charge, and concurrent terms of fifteen years of imprisonment on each of the child molestation counts.

Thereafter, Movant filed a Rule 24.035 motion for post-conviction relief. Movant alleged his counsel was ineffective for failing to inform him that one of the first-degree child molestation counts should have been charged as a class C felony and that no factual basis existed for the charge of class B first-degree child molestation on that count. The motion court held an evi-dentiary hearing on Movant’s claims, and it subsequently issued findings of fact and conclusions of law.

The motion court found Movant was entitled to relief on his claim that his separate first-degree child molestation case should have been charged as a class C felony. However, the motion court found there was no question Movant committed the offense and that a factual basis was established at his plea. The motion court also considered Movant’s contention that he would not have pled guilty but would have gone to trial if he had known the maximum punishments for the offenses with which he was charged were life imprisonment, fifteen years of imprisonment, and seven years of imprisonment instead of life imprisonment, fifteen years of imprisonment, and fifteen years of imprisonment, which were the sentences assessed according to his plea agreement. The motion court found Movant’s testimony at the evidentiary hearing in support of this contention was “beyond belief.” However, the motion court found Movant was entitled to re-sentencing because he was sentenced incorrectly. The motion court re-sentenced Movant to a concurrent term of seven years of imprisonment on the separate first-degree child molestation conviction. The motion court rejected all of Movant’s other claims. This appeal follows.

Initially, we note the State has filed a motion to dismiss Movant’s appeal, arguing Movant agreed to waive his right to seek post-conviction relief under Rule 24.035 as part of his plea agreement. Movant filed suggestions in opposition to the State’s motion in which he argued he had not waived his right to seek post-conviction relief as part of the plea agreement in the underlying case.

A movant can waive his right to seek post-conviction relief in return for a reduced sentence if the record clearly demonstrates that the movant was properly informed of his rights and that the waiver was made knowingly, voluntarily, and intelligently. Jackson v. State, 241 S.W.3d 831, 833 (Mo.App. E.D.2007).

In this case, Movant pleaded guilty to the three charges. The plea court explained to Movant the rights he was giving up and the consequences of the plea. The State also went through and established the factual basis of the crimes to which Movant was pleading guilty. After each count, the plea court found on the record that there was a factual basis for the plea, that Movant understood the nature of the charge, and that Movant’s plea was voluntary and unequivocal. The court accepted all three pleas.

The plea court then asked about the plea agreement. In addition to the State’s recommended sentences, the State listed several other charges it was agreeing not to file. Further, the State noted that if Mov-ant filed a post-conviction motion, “whether [it was] granted or denied ... that would ... be a violation of the [plea] agreement which would allow the State to come back and proceed on any of these other victims if it so desired.” Movant’s plea counsel stated he was uncomfortable with the last part because he did not discuss the waiver of Movant’s post-conviction rights with Movant.

The plea court then sentenced Movant to a term of life imprisonment and two concurrent fifteen year terms and explained his post-conviction rights to him. After Movant had been sentenced and after his post-conviction rights had been explained to him, the plea court asked Mov-ant if he would like an opportunity to talk to his plea counsel about waiving his post-conviction rights. The following exchange then occurred before the plea court:

[Plea Counsel]: Judge, actually I’d like to make a record as to the waiver of the post-conviction rights. This plea agreement came about this afternoon starting at about noon today. I saw [the prosecutor] at lunch time and the offer was life and everything concurrent to that. No mention was made as to waiving the PCR rights. Any time that I discussed a plea agreement with [Movant] I never discussed with him waiving his PCR rights. The first time I heard about PCR, waiving PCR rights was approximately one minute before this plea was to begin and it is the position of the Public Defender’s Office that it would be a conflict of interest for me to advise
[Movant] to waive his post-conviction rights because one of the prongs of that is effective assistance of counsel and it puts me in a very improper position to advise [Movant] whether or not I did a good job for him. So I’ll advise him as to what his PCR rights are in a little bit more detail, but as far as—
[The Court]: Well, I don’t expect you to advise him as to whether he ought to accept that proposition or not but simply to maybe clarify what his postconviction rights are privately so he can make his own decision as to whether to accept that late add on to the plea offer, let’s put it that way. Okay. So if you want to just step back there, maybe you can go ahead and do that. We’ll just wait until whenever you get finished.
([Movant] and counsel conferred off the record at this time and the proceedings resumed as follows.)
[The Court]: [Movant], obviously you’re back in front of the bench now. I wasn’t keeping track, but you had at least a couple minutes there to talk to [Plea Counsel] about your post-conviction rights and to consider whether you want to accept that portion of the State’s plea offer or not?
[Movant]: Yeah.
[Plea Counsel]: [Movant], I advised you not to waive your PCR rights when we were back there; correct?
[Movant]: Yeah.
[Plea Counsel]: So you’re doing this on your own without me?
[Movant]: Yes.
[The Prosecutor]: And Judge, I’m not saying he has to waive it right now. He’s got the next six months to consider it. But if he ends up filing in the next six months, whether he wins that PCR motion or not it violates then the agreement that we entered into which is that he would accept these sentences and go serve them. Anything he does to violate that then allows me to go back and file whatever charges, etc., that I deem appropriate. That’s the only thing I’m making clear. Whether he waives it or not, that’s entirely up to him but it would be a violation because he is not serving the sentences, then he’s saying something’s wrong with the sentences or there’s something wrong with the plea and he wants to have it redone. If that’s the case we redo it all.
[The Court]: Okay. [Movant], any questions about that?
[Movant]: No.
[The Court]: All right. I think we’ve covered it all. All right. [Movant is] remanded to the custody of the Sheriff.

Thus, at this point, it bears emphasizing that the purported waiver, which the State claims was part of the plea agreement, did not occur until after the court had accepted Movant’s pleas, had sentenced Movant according to his pleas, and had explained his post-conviction rights to him. Thus, it is clear that the waiver of post-conviction rights was not part of the plea agreement because it was not explained to Movant until after the plea agreement had been executed.

Further, as previously noted in Jackson, we have found a defendant can waive his right to seek post-conviction relief as part of a plea agreement only if the record clearly demonstrates that he was properly informed of his rights and the waiver was made knowingly, voluntarily, and intelligently. Implicit in that holding is the principle that a defendant can only agree to waive his rights to post-conviction relief while represented by counsel and after being fully informed of his rights. An accused is constitutionally entitled to assistance of counsel at all critical stages of prosecution. State v. Johnson, 172 S.W.3d 900, 902 (Mo.App. S.D.2005).

Here, we have already noted Movant had not been fully informed about waiving his post-conviction rights when his plea was accepted. In addition, the record shows Movant did not have the benefit of counsel when he chose to purportedly waive his postconviction rights. Further, when the agreement was finally explained to Movant, it was explained improperly. The State explained that Movant and the State agreed that if Movant chose to file a motion for post-conviction relief, the State could then proceed on additional charges in relation to other victims. Such an arrangement does not constitute a formal waiver of Movant’s right to seek post-conviction relief. Because the record does not show Movant was properly informed about the waiver of his post-conviction relief rights and because Movant entered into the part of the plea agreement regarding waiving his rights to post-conviction relief without the benefit of counsel, he did not knowingly and intelligently waive his post-conviction rights. Therefore, the State’s motion to dismiss is denied.

In his sole point, Movant argues the motion court clearly erred in denying his claim that his guilty plea was entered in an unknowing, involuntary, and unintelligent manner and that his counsel was ineffective for failing to inform him that one of the counts of first-degree child molestation should have been charged as a class C instead of a class B felony. Movant contends that although he was re-sentenced on the conviction, such re-sentencing was inadequate because he pleaded guilty as part of a package deal so if one part of it was wrong, the whole plea has to be redone. We disagree.

Our review of a motion court’s findings of fact and conclusions of law in denying a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the findings and conclusions are clearly erroneous. Rule 24.035(k); Fee v. State, 283 S.W.3d 296, 297 (Mo.App. E.D.2009). A motion court’s findings and conclusions are clearly erroneous only if, after a full review of the record, we are left with a definite and firm impression that a mistake has been made. Id. When reviewing a motion court’s ruling, we presume the motion court’s findings are correct. Id. The motion court is not required to believe the testimony of the movant or any other witness at an evidentiary hearing, even if uncontradict-ed, and an appellate court must defer to the motion court’s determination of credibility. State v. Clements, 849 S.W.2d 640, 646-47 (Mo.App. S.D.1993).

If an accused has been misled or induced to plead guilty by fraud, mistake, misapprehension, fear, coercion, or promises, the accused should be permitted to withdraw his guilty plea. Samuel v. State, 284 S.W.3d 616, 619 (Mo.App. W.D.2009). This is because such mistakes can affect the voluntariness of the plea, which implicates the pleader’s fundamental rights under the Missouri and United States Constitutions. Id.

Movant contends the State asserted that if Movaht filed a post-conviction motion alleging something was wrong with his sentences or plea, they would “redo it all.” Movant maintains he would have proceeded to trial had he known the maximum punishment for the third count was only seven years. Thus, Movant argues his counsel was ineffective for failing to inform him of the correct maximum range of punishment, which rendered his guilty plea unknowing, unintelligent, and involuntary. Movant contends although the court re-sentenced him, he pleaded guilty according to a “global plea,” and thus, he should be allowed to withdraw his entire plea because ineffectiveness as to some counts taints the entire plea.

The motion court concluded Mov-ant’s claim that he would not have pleaded guilty if he knew one of the charges was a class C felony was not credible and that Movant’s counsel was not ineffective.

We are required to defer to the motion court’s determinations of credibility. As a result, we cannot say the motion court’s findings were clearly erroneous. Further, Movant received relief because the motion court re-sentenced him in accordance with the correct guidelines. Movant has failed to show his belief in the incorrect sentence in one count rendered his guilty pleas as to the other counts unknowing, unintelligent, or involuntary. Here, Movant pleaded guilty in return for the maximum penalty on the three counts, and that is how he was sentenced.

Therefore, the motion court did not err in denying Movant’s claim that his guilty plea was entered in an unknowing, involuntary, and unintelligent manner and that his counsel was ineffective for failing to inform him that one of the counts of first-degree child molestation should have been charged as a class C instead of a class B felony. Point denied.

The motion court’s denial of Movant’s Rule 24.035 motion for post-conviction relief is affirmed.

KURT S. ODENWALD, P.J. and NANNETTE A. BAKER, J., concur.

      . All further statutory references are to RSMo 2000.

      . Had Movant actually waived his rights to post-conviction relief, he would not have had the right to file a motion, and if he had filed a motion, it would have been dismissed. See Jackson, 241 S.W.3d at 833. Adding to the confusion, the State raised the waiver issue just after the plea court had informed Movant of his right to file a motion for post-conviction relief as required by Rule 29.07(b)(4).

      . We note that in his response to the State's motion to dismiss, Movant cited to Formal Opinion 126 ("Formal Opinion 126”), which was issued on May 19, 2009 by the Advisory Committee of the Supreme Court of Missouri to deal with the subject of waiver of post-conviction relief. Formal Opinion 126 states:
      We have been asked whether it is permissible for defense counsel in a criminal case to advise the defendant regarding waiver of the right to seek post-conviction relief under Rule 24.035, including claims of ineffective assistance by defense counsel. We understand that some prosecuting attorneys have expressed intent to require such a waiver as part of a plea agreement.
      It is not permissible for defense counsel to advise the defendant regarding waiver of claims of ineffective assistance of counsel by defense counsel. Providing such advice would violate Rule 4-1.7(a)(2) because there is a significant risk that the representation of the client would be materially limited by the personal interest of defense counsel. Defense counsel is not a party to the post-conviction relief proceeding but defense counsel certainly has a personal interest related to the potential for a claim that defense counsel provided ineffective assistance to the defendant. It is not reasonable to believe that defense counsel will be able to provide competent and diligent representation to the defendant regarding the effectiveness of defense counsel's representation of the defendant. Therefore, under Rule 4-1.7(b)(Z), this conflict is not waiva-ble.
      We have also been asked whether it is permissible for a prosecuting attorney to require waiver of all rights under Rule 24.035 when entering into a plea agreement. We believe that it is inconsistent with the prosecutor's duties as a minister of justice and the duty to refrain from conduct prejudicial to the administration of justice for a prosecutor to seek a waiver of post-conviction rights based on ineffective assistance of counsel or prosecutorial misconduct. See, Rules 4-3.8 and 8.4(d).
      We note that at least three other states have issued opinions consistent with our view. [The North Carolina State Bar, RPC 129, January 15, 1993; Board of Professional
      Responsibility of the Supreme Court of Tennessee Advisory Ethics Opinion 94-A-549, November 30, 1994; Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio, Opinion 2001-6, December 7, 200l.J
      We do not believe the Rules of Professional Conduct prohibit a defense counsel and prosecutor from entering into a plea agreement that involves waiver of other postcon-viction rights, unless such a waiver violates the Constitution or other laws. Analysis of whether it would violate the Constitution or other laws is beyond the scope of this opinion.
      However, we find that we need not address any potential application of Formal Opinion 126 to this case because Movant did not waive his post-conviction rights here.

      . We note that unlike the situation with Mov-ant’s supposed waiver of post-conviction rights, Movant had the full benefit of counsel for the rest of the plea agreement.


text:
    Naomi TAYLOR, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondents.
    No. WD 71804.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    Naomi Taylor, Pine Bluff, AR, Appellant, Acting pro se.
    Larry R. Ruhmann, Jefferson City, MO, for Respondents.
    Before VICTOR C. HOWARD, P.J., THOMAS H. NEWTON, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Ms. Naomi Taylor appeals from the decision of the Labor and Industrial Relations Commission affirming the Division of Employment Security’s denial of unemployment benefits. The Division determined Ms. Taylor was not eligible for benefits because she voluntarily left her employment without good cause attributable to the work or to the employer.

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


text:
    TAN TIME, LLC., Appellant-Respondent, v. THE CURATORS OF the UNIVERSITY OF MISSOURI, Respondent-Appellant.
    Nos. WD 71754, WD 71829.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    Thomas M. Schneider, for Appellant-Respondent.
    Kelly S. Mescher, for Respondent-Appellant.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, JAMES M. SMART, JR., Judge and ALOK AHUJA, Judge.
   ORDER

PER CURIAM:

Tan Time, L.L.C. appeals from the trial court’s judgment denying Tan Time’s lost profits claim and its quantum meruit claim, and holding that the lease agreement between Tan Time and the University of Missouri would expire under its own terms on December 31, 2010. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, that no error of law appears, and that an opinion would have no precedential value.

Judgment affirmed. Rule 84.16(b).


author: THOMAS H. NEWTON, Judge.

text:
    MOTOR CONTROL SPECIALITIES, INC., and the Ohio Casualty Insurance Company, Appellants, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION, State of Missouri; Stephen M. Petelik, Respondents.
    No. WD 71586.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.

      Kevin McFarland Leahy, St. Louis, MO, for Appellants.
    James R. Layton, Jefferson City, MO, for Respondents, Labor <& Industrial Relations & State of Missouri.
    Roger G. Brown, Jason R. McClitis, Jefferson City, MO, Ellen E. Morgan, Ball-win, MO, for Respondent, Petelik.
    Before: VICTOR C. HOWARD, P.J., THOMAS H. NEWTON, and GARY D. WITT, JJ.
   THOMAS H. NEWTON, Judge.

Motor Control Specialties, Inc. (Employer) and The Ohio Casualty Company (its Insurer) appeal the trial court’s judgment denying their petition for declaratory judgment and awarding Mr. Stephen Petelik (Claimant) attorney fees. We affirm.

Factual and Procedural Background

An administrative law judge (ALJ) determined an injury Claimant sustained to his back was compensable under Workers’ Compensation Law and granted a temporary or partial award to Claimant against Employer and its Insurer. Petelik v. Motor Control Specialists, 190 S.W.3d 517, 518 (Mo.App. E.D.2006). Employer and its Insurer filed an application for review of the ALJ’s temporary award with the Labor and Industrial Relations Commission (Commission). Id. at 518-19. The Commission applied regulation 8 CSR 20-3.040 and dismissed the application for review because the ALJ’s award was not yet final and Employer was not denying all liability. Id. at 519. Employer and its Insurer appealed the Commission’s decision to this court’s Eastern District, alleging the Commission erred in dismissing the application for review. Id. The Eastern District dismissed the appeal for lack of jurisdiction because the Commission’s order dismissing the application for review was not a final and appealable decision. Id. at 518, 520. The Eastern District did not address the validity of the regulation.

Thereafter, Employer and its Insurer filed a petition for declaratory judgment against the Commission and Claimant under section 536.050, asking the trial court to declare regulation 8 CSR 20-3.040 unconstitutional. Motor Control Specialties, Inc. v. Petelik, 258 S.W.3d 482, 485 (Mo.App. W.D.2008). The petition also requested an injunction to “stay the award of temporary total disability ... pending resolution of this matter” for Claimant’s back injury and a writ of mandamus to compel the Commission to review the temporary award. The Claimant filed an answer raising affirmative defenses and counterclaims and later filed a motion to dismiss. The Commission filed a memorandum in support of Claimant’s motion to dismiss the petition.

Employer and its Insurer voluntarily dismissed the count for writ of mandamus. The trial court entered judgment granting Claimant’s motion to dismiss. Thereafter, Claimant filed a request for attorney fees. The trial court denied the request. Subsequently, the trial court entered a final judgment reflecting its decisions stating “no just reason for delay [existed] pursuant to Rule 74.01(b).” Employer and its Insurer appealed the dismissal of the declaratory judgment action and Claimant cross-appealed the denial of attorney fees. Motor Control, 258 S.W.3d at 484.

On appeal, we reversed the dismissal of the declaratory judgment action and remanded the case to the trial court “to convert its decision to a ruling on the merits of the petition.” Id. at 484, 488. We also concluded that the disposition mooted Claimant’s appeal of the denial of attorney fees at trial and his request for attorney fees at the appellate level. Id.

On remand, the trial court allowed Employer and its Insurer to amend the petition, over Claimant’s and the Commission’s objections, to include an argument that regulation 8 CSR 20-3.040 “contravenes portions of Chapter 287.” Additionally, Employer and its Insurer voluntarily dismissed Claimant from the suit. The trial court thereafter allowed the Claimant to request attorney fees and put on evidence of attorney fees.

At the conclusion of the hearings on the petition and application for attorney fees, the trial court found that regulation 8 CSR 20-3.040 was constitutional and did not contravene the Workers’ Compensation statutes. It granted attorney fees to Claimant for $81,609. Employer and its Insurer (collectively, “Appellants”) appeal the judgment, raising fourteen points.

Standard of Review

We review a declaratory judgment under the principles set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Psychiatric Healthcare Corp. of Mo. v. Dep’t of Soc. Servs., 100 S.W.3d 891, 899 (Mo.App. W.D.2003). We will affirm the trial court’s judgment unless it erroneously declares or applies the law. Id. Questions of law such as statutory interpretation are reviewed de novo. Id. Therefore, we provide the court no deference in its legal conclusions. Id.

We review the granting of attorney fees for an abuse of discretion. Auto-Owners Ins. Co. v. Ennulat, 231 S.W.3d 297, 307 (Mo.App. E.D.2007).

Legal Analysis

In the first three points, Appellants argue that the trial court erred in denying the declaratory judgment because regulation 8 CSR 20-3.040:(l) conflicts with section 287.610.6; (2) was promulgated without authority; and (3) violates due process rights under the United States Constitution and the Missouri Constitution. In the remaining eleven points, Appellants argue that the trial court erred either in awarding attorney fees or in awarding the amount of attorney fees.

Declaratory Judgment

In the first point, Appellants argue that regulation 8 CSR 20-3.040 conflicts with section 287.610.6 because the statute provides that “any award” by an ALJ shall be subject to review under section 287.480 and the regulation “precludes review of temporary or partial awards until they are designated to be ‘final’ by an ALJ.” Specifically, Appellants argue that “any,” in its ordinary and plain meaning, is synonymous with “all,” which would include temporary or partial awards. Appellants rely on Gash v. Lafayette County, 245 S.W.3d 229 (Mo. banc 2008), for support.

When interpreting statutes, this court ascertains the legislature’s intent from the language used. Sheedy v. Mo. Highways & Transp. Comm’n, 180 S.W.3d 66, 72 (Mo.App. S.D.2005). Section 287.610.6 states, in relevant part, “Any award by an administrative law judge upon an original hearing shall have the same force and effect, shall be enforceable in the same manner as provided elsewhere in this chapter for awards by the labor and industrial relations commission, and shall be subject to review as provided by section 287.480.” Section 287.480 states, in relevant part, “If an application for review is made to the commission within twenty days from the date of the award, the full commission, if the first hearing was not held before the full commission, shall review the evidence, or, if considered advisable, as soon as practicable hear the parties at issue.”

Section 287.480 has been interpreted to constitute the deadline in which to file an application for review of an award in order to have a timely request before the Commission. Phelan v. Treasurer, 249 S.W.3d 260, 263 (Mo.App. W.D.2008). We have also concluded that this deadline is jurisdictional such that the Commission is without jurisdiction to review an ALJ’s decision beyond the twenty days. Merritt v. Shoney's Inc., 925 S.W.2d 494, 495 (Mo.App. E.D.1996). Thus, the legislature intended for “any” ALJ’s award, as stated in section 287.610.5, to be subjected to this deadline.

Regulation 8 CSR 20-3.040(1) states:

Whenever an administrative law judge issues a temporary or partial award under section 287.510, RSMo, the same shall not be considered to be a final award from which an application for review (see 8 CSR 20-3.030) may be made. The time for making an application for review shall not commence until a final award is issued by the administrative law judge in cases where a temporary or partial award has been issued.

Thus, 8 CSR 20-3.040(1) delays the application of the statutory filing deadline of twenty days when an award is designated partial or temporary. In delaying review, in essence, the Commission interpreted “award,” as used in section 287.480, to exclude a “temporary or partial award.” Because the statutory deadline of twenty days is jurisdictional, we must determine whether excluding a “temporary or partial award” from the term “award” was consistent with the legislature’s intent.

In discerning the legislature’s intent, “we consider the statute in the context of the entire statutory scheme on the same subject” to avoid unjust, unreasonable, or absurd results. Sheedy, 180 S.W.3d at 72 (internal citation and quotation marks omitted). In section 287.510, the legislature provides that in “any case,” a temporary or partial award “may be made, and the same may be modified from time to time to meet the needs of the case.” And in section 287.495, the legislature provides a deadline for appeals from the Commission’s awards that are final awards. Thus, the Missouri Supreme Court has determined that temporary or partial awards made under 287.510 are not final awards subject to judicial review under section 287.495. Abrams v. Ohio Pac. Express, 819 S.W.2d 338, 343 (Mo. banc 1991) (“Substantial caselaw holds that no statutory authority exists for judicial review of temporary or partial awards made pursuant to § 287.510 and its statutory predecessors.”); see also Bolen v. Orchard Farm R-V Sch. Dist., 291 S.W.3d 747, 750 (Mo.App. E.D.2009).

By using “any case” in section 287.510 and not specifying cases before the Commission, the legislature also authorizes an ALJ to issue temporary or partial awards that may be “modified from time to time.” The Commission has the authority to promulgate rules to govern “its proceedings in connection with the exercise of its quasi-judicial functions.” § 286.060(8). To subject an ALJ’s temporary or partial award to the same standard employed to prevent review of the Commission’s award in its tentative state is consistent with the legislature’s intent. It would be absurd to construe the statute to require the Commission to review a temporary or partial award at that time when it precludes reviewing courts from doing so. Consequently, the Commission’s regulation delaying review of temporary or partial awards is consistent with the legislature’s statutory scheme. Because the regulation is consistent with the legislature’s intent, it is valid. Consequently, Appellants’ first point is denied.

In the second point, Appellants argue that regulation 8 CSR 20-3.040 was promulgated without authority because section 287.410 provides that the “power and duty to review any award made under the workers’ compensation law” resides with the Commission and cannot be delegated, but the regulation precludes the Commission from reviewing the ALJ’s award. The regulation does not delegate the review of an ALJ’s award to any other body and only precludes the Commission from reviewing the decision in its tentative state. Thus, regulation 8 CSR 20-3.040 does not contravene section 287.410. Appellants’ second point is denied.

In the third point, Appellants argue that regulation 8 CSR 20-3.040 violates due process of law because due process requires the taking of an appeal if permitted by law and article V, section 18 of the Missouri Constitution states that all final decisions by administrative agencies are subject to judicial review, but the regulation precludes awards designated “temporary” from being considered “final” for purposes of review even though the practical effect of the temporary award has finality. Appellants argue that we should adopt the United States Supreme Court’s definition of “final,” and that under that definition, the temporary award would be final. Applying that definition, Appellants argue that the Commission is denying employers due process because the regulation delays review of a “final” decision.

In Darby v. Cisneros, the case Appellants rely on, the Supreme Court did not define “final” but distinguished between the doctrines of “finality” and “the exhaustion of administrative remedies” under the Administrative Procedure Act by noting the former is “concerned with whether the initial decision maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.” 509 U.S. 137, 144, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993). Missouri Courts already employ this doctrine of finality when considering whether an agency’s decision is final. See Asbury v. Lombardi, 846 S.W.2d 196 (Mo. banc 1993) (citing Nat’l Treasury Emps. Union v. Fed. Labor Relations Auth., 712 F.2d 669, 670-71 (D.C.Cir.1983)) (adopting federal definition of “finality” — not “tentative, provisional, or contingent decisions subject to reconsideration” — to decide whether an agency’s decision was final for purpose of judicial review in Missouri Constitution); Dore & Assocs. Contracting, Inc. v. Mo. Dep’t of Labor and Indus. Relations Comm’n, 810 S.W.2d 72, 75-76 (Mo.App. W.D.1990) (discussing and applying National Treasury Employees’s definition of “finality” to determine whether the Commission’s refusal to hear contractor’s objection to a wage determination was a final decision for purpose of judicial review). The Eastern District applied this definition of “finality” and determined in Petelilc that the temporary award issued by the ALJ was not final. 190 S.W.3d at 520.

Intermediate decision-making steps within the agency, before its decisions become final, are constitutionally permissible. See State ex rel. AG Processing, Inc. v. Pub. Serv. Comm’n, 276 S.W.3d 303, 309-10 (Mo.App. W.D.2008) (citing Asbury, 846 S.W.2d at 201); Parker v. City of St. Joseph, 167 S.W.3d 219, 222 (Mo.App. W.D.2005) (same). It is only after an administrative decision is final that intervening steps between judicial review become unconstitutional because they preclude direct review of that final decision. Asbury, 846 S.W.2d at 202. The regulation only addresses intermediate decision-making before the decision becomes final. Thus, the regulation is constitutional because it does not thwart judicial review of a final decision. The trial court did not err in its declaration of the law. Accordingly, Appellants’ third point is denied.

Attorney Fees

In the remaining points, Appellants argue that the trial court erred in awarding attorney fees because: (4) the trial court exceeded this court’s mandate; (5) the issue of attorney fees was beyond the scope of the pleading; (6) Claimant was not a prevailing party under section 536.050.3; (7) the award was not supported by substantial and competent evidence; (8) the award was erroneously based on a finding that Claimant was an improperly joined defendant; (9) the award was erroneously based on a finding that Claimant had to defend against the declaratory judgment action; (10) a declaratory judgment action is not within the “very unusual circumstances” exception to the American Rule; (11) the evidence does not support applying the collateral litigation exception to the American Rule; (12) the award was unnecessary and unreasonable; (13) the award was not supported by substantial and competent evidence and was against the weight of the evidence; and (14) the attorney fees were not segregated as required by law. For ease of analysis, we do not address these points in sequential order. Did the trial court exceed our mandate in considering the issue of attorney fees?

First, we address whether the trial court exceeded our mandate in con-sidering the issue of Claimant’s attorney fees. A trial court upon remand has a duty to proceed “in accordance with the mandate and the result contemplated in the appellate court’s opinion.” Associated Indus, of Mo. v. Dir. of Revenue, 918 S.W.2d 780, 782 (Mo. banc 1996). A trial court retains its authority over all issues in a case upon remand unless the mandate or the opinion limits its authority by providing specific directives to the trial court. See id. When specific directives are provided to the trial court, the mandate itself is specific and the trial court cannot modify, alter, amend, or deviate from the appellate court’s judgment. Tillis v. City of Branson, 975 S.W.2d 949, 952 (Mo.App. S.D.1998). “Proceedings that are contrary to the directions of the mandate are unauthorized and unenforceable.” Pope v. Ray, 298 S.W.3d 53, 57 (Mo.App. W.D.2009).

Appellants argue that the trial court exceeded the scope of the mandate because neither the mandate nor our opinion contemplated the reconsideration of attorney fees. Appellants reason that the trial court could not reconsider awarding Claimant’s attorney fees because our mandate did not address attorney fees and the opinion did not order the court to reconsider attorney fees on remand. Appellants rely on Tillis for support. The Tillis court determined that the trial court would have exceeded its mandate in awarding attorney fees on remand because the specific mandate did not mention an award of attorney fees, although it mentioned other awards. 975 S.W.2d at 952.

Our mandate in Motor Control states in pertinent part: “the cause is remanded to the Circuit Court of Cole County for further proceedings in conformity with the opinion of this Court.” Because our mandate does not contain a specific directive, it is general. See Pope, 298 S.W.3d at 58 n. 4 (listing examples of specific mandates). Nor does our opinion contain a specific directive indicating limits placed on the trial court’s discretion. See Associated, 918 S.W.2d at 782 (stating mandate must be read in conjunction with opinion). We ordered the trial court to “convert its decision to a ruling on the merits of the petition.” Motor Control, 258 S.W.3d at 488. We stated that “[o]ur disposition of Motor Control’s and Ohio Casualty’s appeal renders moot [Claimant’s appeal of the denial of his application for attorney fees and his request for attorney fees on appeal.” Id. Contrary to Appellants’ contention, the mooting of the issue of attorney fees did not impliedly affirm the trial court’s denial of attorney fees.

We reversed the trial court’s dismissal because section 536.050 authorized the declaratory judgment action and because the issue of the regulation’s constitutionality was not barred under the doctrine of res judicata. Id. at 486-87. Missouri requires litigants to pay their own attorney fees, following the American Rule, unless an exception applies. Gebru v. St. Louis Cnty., 136 S.W.3d 89, 93 (Mo.App. E.D.2004). Under any exception, the litigant must be the prevailing party to be entitled to an award of attorney fees. Id. Because we reversed the dismissal, Claimant was no longer the prevailing party. See Wall USA, Inc. v. City of Ballwin, 53 S.W.3d 168, 173 (Mo.App. E.D.2001); see also Monsanto Co. v. Garst Seed Co., 241 S.W.3d 401, 417 (Mo.App. E.D.2007) (stating litigant must ultimately prevail on appeal to be deemed the “prevailing party” in litigation). Thus, the propriety of the denial of the application for attorney fees was rendered moot.

Based on our disposition, it was logical for the trial court to reconsider awarding attorney fees on remand after ruling on the merits. See Associated, 918 S.W.2d at 783 (stating the trial court on remand properly addressed whether statute was invalid on state grounds; because although an issue on appeal, it was not addressed due to disposition on federal grounds). Accordingly, Tillis is not applicable because our mandate was general and the accompanying opinion did not address the issue based on the disposition of Motor Control’s appeal. Thus, the trial court did not exceed our mandate in awarding attorney fees. Appellants’ fourth point is denied.

Did the trial court lack authority to grant attorney fees'?

Second, we address Appellants’ challenges to the trial court’s authority to grant attorney fees. Appellants argue that the trial court awarded attorney fees beyond the scope of the pleadings because Claimant did not plead attorney fees under the collateral litigation exception. Our review of the record shows that Claimant did request attorney fees. Upon remand, Claimant was dismissed from the lawsuit and, thereafter, submitted an application to the trial court for attorney fees based on, inter alia, the collateral litigation exception. Thus, the issue was properly pleaded before the trial court. Appellants’ fifth point is denied.

Appellants also argue that Claimant was not a prevailing party under section 536.050 and was not entitled to attorney fees under any of the exceptions to the American Rule. The trial court awarded fees under the collateral litigation exception to the American Rule and not under section 536.050. As stated earlier, a litigant must prevail to be entitled to attorney fees under any exception to the American Rule. A litigant may be the prevailing party when he “obtain[s] a settlement, obtain[s] a voluntary dismissal of a groundless complaint, or obtain[s] a favorable decision on a single issue if the issue is one of significance to the underlying case.” Greenbriar Hills Country Club v. Dir. of Revenue, 47 S.W.3d 346, 353 (Mo. banc 2001). A litigant may also be the prevailing party even if he obtains a dismissal without prejudice of the cause against him when the plaintiff abandons the claim and the litigant thereby receives a benefit. See Melahn v. Otto, 836 S.W.2d 525, 528 (Mo.App. W.D.1992).

Contrary to Appellants’ contention, Claimant is a prevailing party because Appellants dismissed him from the action upon remand; abandoned the declaratory judgment action against him; and Claimant benefited from the dismissal because he no longer had to defend against the action and did not have to prosecute his counterclaims.

A successful litigant may be awarded attorney fees under one of the exceptions to the American Rule if the litigant demonstrates the existence of special circumstances surrounding the litigation. Grewell v. State Farm Mut. Auto. Ins. Co., 162 S.W.3d 503, 507 (Mo.App. W.D.2005). Some examples of special circumstances include “where very unusual circumstances exists so it may be said equity demands a balance of the benefits” and “where the attorney fees are incurred because of involvement in collateral litigation.” Lett v. City of St. Louis, 24 S.W.3d 157, 162 (Mo.App. E.D.2000).

The trial court found that the “equities in this case between a well-funded employer and insurer with assets and means to litigate this issue far exceed those assets of an injured worker” and noted that Claimant “had still not received anything in terms of his temporary award at time of the hearing on attorney fees.” It stated that applicable case law prevented an appeal from a temporary award in which some of the issues were in dispute. Therefore, it concluded that “special and unusual circumstances for an exception to the American Rule” existed because Appellants pursued collateral litigation, despite unfavorable precedent concerning appeals taken from temporary awards, thereby requiring Claimant to defend his temporary award.

Appellants argue that granting attorney fees under this exception was erroneous because there was no showing of “third-party litigation, no evidence that plaintiffs breached a duty in bringing the action and/or that the attorney fees were necessary.” “ ‘Where the natural and proximate result of a wrong or breach of duty is to involve the wronged party in collateral litigation, reasonable attorney fees necessarily and in good faith incurred in protecting himself from the injurious consequence thereof are proper items of damages.’ ” Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 657 (Mo. banc 2009) (quoting Johnson v. Mercantile Trust Co. Nat’l Ass’n., 510 S.W.2d 33, 40 (Mo.1974)). Collateral litigation with a third-party is not mentioned, but rather collateral litigation as a “natural and proximate” result of a wrong or breach of duty is required for the exception. See id.

Here, Appellants breached a duty to Claimant in filing their petition. Appellants are correct that they had a right to bring a declaratory judgment action challenging the constitutionality of the regulation. As previously stated, we found that the declaratory judgment action was not challenging the agency’s application of the rule but the agency’s rule. Motor Control, 258 S.W.3d at 486. However, the petition also requested an injunction to stay the enforcement of the temporary award. A temporary award is compensation granted to the injured worker. Motor Control as an employer has a duty to pay injured workers who receive an award pursuant to Workers’ Compensation Law. See § 287.060. Under section 287.510, an employer risks the award being doubled at the time of the final award if the employer fails to pay the temporary award. Appellants requested an injunction to protect themselves from this risk “pending the resolution of [the declaratory judgment action].” Thus, Motor Control breached its duty to Claimant, an injured worker, when it requested an injunction in the courts for protection against the Workers’ Compensation Law.

Appellants further claim that the petition for declaratory judgment, injunction, and writ of mandamus was not collateral litigation because the ALJ’s award was not final. They rely on Barry, Inc. v. Falk, 217 S.W.3d 317, 320 (Mo.App. W.D.2007). Barry found that an employer’s failure to comply with a statutory provision providing review of a final award by trying to prevent enforcement in a court of equity was a collateral attack. Id. at 320. The Barry court’s reasoning, although applied to final awards, is seemingly applicable to temporary awards because the statutes provide for review of temporary awards, which are also enforceable. Thus, contrary to Appellants’ argument, seeking a stay, which is a prevention of enforcement for a limited time, constitutes a collateral attack.

Finally, Appellants assert that Claimant did not necessarily incur the fees to protect himself from injury because according to this court’s language in Motor Control, the litigation did not place the award at risk. In Motor Control, we stated that the declaratory judgment did not interfere with the Commission’s decision as to whether Claimant was entitled to workers’ compensation benefits for his back injury. See Motor Control, 258 S.W.3d at 487. However, we did not address the injunction claim because it had been dismissed and was not challenged on appeal. Id. at 485 n. 1. The requested injunction sought to deprive Claimant of his remedy against Appellants for their failure to comply with the temporary award. The Commission as a third party had no interest in the enforcement of the award. Hence, Claimant incurred attorney fees to defend against Appellants’ litigation.

Because Motor Control breached a duty to Claimant in seeking an injunction, which constituted collateral litigation, and required Claimant to incur attorney fees to defend against it, the trial court did not err in awarding attorney fees under the collateral litigation exception. Appellants’ eleventh point is denied.

Appellants argue in their sixth, eighth, ninth, and tenth points that Claimant was not entitled to attorney fees based on several grounds. Because we have upheld the trial court’s basis for awarding attorney fees, these points are also denied.

Was the evidence sufficient and competent to support the award?

Third, we address Appellants’ arguments challenging the sufficiency and competency of the evidence supporting the award of attorney fees. Appellants argue that the award was not supported by substantial and competent evidence because “the trial court had previously entered an order denying attorneys’ fees and denied [Claimantj’s motion to intervene.” They argue because these previous decisions were inconsistent with the trial court’s grant of attorney fees, the trial court abused its discretion. Appellants rely on Burton v. Donahue, 959 S.W.2d 946 (Mo.App. E.D.1998).

Burton states, “[A] judgment which is based on findings that are inconsistent and ambiguous does not allow for adequate appellate review and must be reversed.” 959 S.W.2d at 948. The order that Appellants mention is the original decision denying attorney fees, which was appealed and reversed in Motor Control. In determining that the ruling was erroneous, remanding the case for a ruling on the merits, and finding the attorney fees issue had been rendered moot, we necessarily reversed the trial court’s judgment regarding attorney fees. Thus, the trial court’s denial of attorney fees became void; hence, the subsequent granting of attorney fees on remand was a separate and distinct judgment. Additionally, the denial of the motion to intervene was also a separate and distinct decision from the award of attorney fees. Accordingly, Burton, which applies to inconsistencies within the same judgment, is inapplicable here. Appellants’ seventh point is denied.

Appellants also argue that the attorney fees were not supported by substantial and competent evidence and were against the weight of the evidence because the award was granted upon an “offer of proof’ rather than an “evidentiary hearing.” We agree that an offer of proof is not evidence. See Russell v. Dir. of Revenue, 35 S.W.3d 507, 510 (Mo.App. E.D.2001) (“Generally, in order to preserve an issue of exclusion of evidence for appeal, a definite and specific offer of proof demonstrating why the evidence is relevant and admissible must be made at trial.”).

Here, the trial court did not sustain Appellants’ objection to the evidence offered for attorney fees but rather acknowledged Appellants’ continuing objection to the application for attorney fees. The trial court granted Claimant’s motion for an evidentiary hearing on its request for attorney fees. Appellants had filed a memorandum in opposition to Claimant’s application for attorney fees. At the hearing to acknowledge Appellants’ objection to the attorney fees, the trial court stated that it would hear the evidence first as an “offer of proof’ before it heard arguments on the merits.

During the hearing, Appellants cross-examined the witnesses, challenged the evidence, adduced evidence, and argued against the authority and reasonableness of the requested fees. The trial court then took the matter with the case. Thus, the presentation of evidence was not an offer of proof but an evidentiary hearing to determine whether the trial court would grant Claimant’s application or dismiss it. See Forester v. Dir. of Revenue, 85 S.W.3d 122, 125 (Mo.App. W.D.2002) (stating offer of proof inadmissible because testimony was not cross-examined). Appellants’ thirteenth point is denied.

Did the trial court abuse its discretion in awarding the amount of fees?

Finally, we address Appellants points challenging the amount of the attorney fees. Appellants argue that the grant of attorney fees was unnecessary and unreasonable because the fees included expenses for counsel to respond to claims that were not directed against Claimant, to prosecute counterclaims, and to research the same issues by different individuals. The amount of attorney fees is within the trial court’s discretion. Essex, 277 S.W.3d at 656-57. We will affirm it unless “ ‘the amount awarded is arbitrarily arrived at or is so unreasonable as to indicate indifference and a lack of proper judicial consideration.’ ” Id. at 657 (quoting Nelson v. Hotchkiss, 601 S.W.2d 14, 21 (Mo. banc 1980)). We presume the amount of attorney fees is reasonable absent evidence to the contrary. Id.

Since Claimant had to defend against the injunction to protect himself from injury, it was reasonable for Claimant’s attorney fees to encompass time expended addressing the declaratory judgment action. An injunction is granted, inter alia, upon the showing of a probability of success on the merits of the claim. State ex rel. Dir. of Revenue, State of Mo. v. Gabbert, 925 S.W.2d 838, 839 (Mo. banc 1996). Here, the declaratory judgment action was the claim upon which Appellants sought an injunction. Consequently, the attorney fees were incurred to defend against both claims.

Testimony and affidavits were presented to the trial court stating that the amount of attorney fees was reasonable and that there was no duplication and repetitiveness of work between the two law firms or within the firms. Thus, there was substantial evidence supporting the decision. Appellants’ twelfth point is denied.

Appellants also argue that the amount of attorney fees awarded was not valid because Claimant did not distinguish between fees incurred for defending against the petition and prosecuting the counterclaims. Claimant only requested fees for defending against the claims and adduced detailed billing statements from both firms in support of the request. The trial court believed this evidence, and Appellants do not highlight specific matters within the exhibit showing fees for labor expended on prosecuting counterclaims. Because Appellants do not show evidence to the contrary, the trial court did not abuse its discretion. Thus, Appellants’ fourteenth point is denied.

Claimant requests attorney fees and expenses on appeal under this court’s Special Rule XXIX, which states that a party may file a motion in this court for attorney fees “pursuant to contract, statute, or otherwise.” Claimant requests attorney fees and costs to respond to appeal on the same basis upon which the trial court awarded them: the collateral litigation exception to the American Rule. See Klinkerfuss v. Cronin, 289 S.W.3d 607, 618 (Mo.App. E.D.2009) (listing cases in which attorney fees on appeal have been granted in “special circumstances” or “very unusual circumstances”). We grant the request because Employer’s challenge on appeal to the propriety of the attorney fees award continues the collateral litigation caused by Employer’s reneging on its promise to adhere to the worker’s compensation law by challenging the enforceability of an ALJ’s temporary or partial award. Because the trial court is better equipped to determine reasonable attorney fees and costs incurred on appeal, we remand to the trial court to hold a hearing and award such amount. See Klinkerfuss v. Cronin, 199 S.W.3d 831, 846 (Mo.App. E.D.2006).

Conclusion

Therefore, we affirm the trial court’s declaratory judgment finding regulation 8 CSR 20-3.040 valid and its grant of Claimant’s attorney fees at trial. We grant Claimant’s request for attorney fees on appeal and remand to the trial court for a hearing and judgment entered accordingly.

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

      . Regulatory references are to the Missouri Code of State Regulations (2003).

      . Claimant's counterclaims included: (1) registration of workers' compensation award; (2) equitable garnishment of insurance policy; and (3) malicious prosecution and abuse of process.

      . Rule 74.01(b) provides in pertinent part:
      When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay.
      At the time the judgment was entered, Claimant's counterclaims were still pending.

      . Claimant initially moved to intervene, but the trial court denied the motion as to the case in chief.

      . The Commission argues that res judicata bars Appellants from raising all three points because Appellants raised the same arguments in their appeal to the Eastern District from the Commission’s decision affirming the AU’s finding that the back was a compensa-ble injury. The appeal was addressed on the merits and since has become final. Petelik v. Motor Control Specialists, 311 S.W.3d 828 (Mo.App. E.D.2010), transfer to Missouri Supreme Court denied. Res judicata precludes, inter alia, the raising of issues that have been previously litigated between the same parties. Lomax v. Sewell, 50 S.W.3d 804, 809 (Mo.App. W.D.2001). "[A] final judgment on the merits must have been rendered involving the same claim or issue sought to be precluded in the cause in question.” Id. (internal citation and quotation marks omitted). Although the same issues were before the Eastern District, according to the point, the arguments challenged the application of the rule as it related to imposing the penalty. Because the imposition of the penalty was proper, the Eastern District denied the point for failure to show prejudice. Here, the challenges are direct attacks on the validity of the regulation. Therefore, these issues have not been addressed on their merits in previous litigation. Consequently, res judicata does not bar the raising of these arguments.

      . Moreover, the first sentence of section 287.601.6 states that ALJs "shall have no jurisdiction upon any review hearing, either in the way of an appeal from an original hearing or by way of reopening any prior award, except to correct a clerical error in an award or settlement ... within twenty days of the original award or settlement.” These limitations on an ALJ’s ability to modify an "award" cannot sensibly be applied to temporary awards, since section 287.510 specifically provides that temporary awards “may be modified from time to time to meet the needs of the case.”

      . Moreover, Missouri courts have treated awards denominated "temporary” as final awards when the award had the practical effect of finality or otherwise was not subject tó reconsideration. See Forkum v. Arvin Indus., Inc., 956 S.W.2d 359, 362-63 (Mo.App. S.D.1997).

      . Appellants' request for attorney fees on appeal is denied because they were not the prevailing party,


text:
    Daxe J. SYKES, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71105.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    Laura G. Martin, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Karen L. Kramer, 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:

Daxe J. Sykes appeals the motion court’s denial of his Rule 29.15 motion for post-conviction relief. We affirm. Rule 84.16(b). A memorandum setting forth the reasons for our decision has been provided to the parties.


text:
    James Lindell MCWHIRT, Appellant, v. William BURGESS, et al., Respondents.
    No. WD 71120.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    James L. McWhirt, Appellant pro se, for appellant.
    Caroline M. Coulter, Jefferson City, MO, for respondents.
    Division One: JAMES M. SMART, JR., P.J., MARK PFEIFFER, and CYNTHIA L. MARTIN, JJ.
   ORDER

PER CURIAM:

James McWhirt appeals the denial of his petition for a writ of mandamus. He claims on appeal that he was erroneously denied jail time credit. The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Daniel N. ROGERS, Appellant.
    No. WD 71597.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    Craig A. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, John W. Grantham, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division Two: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

This is a child molestation case. The issue is whether there was sufficient evidence for the jury to find that the defendant had the purpose of sexually gratifying any person when he touched the victim’s genitals. We hold that there was. Therefore, we affirm. Rule 80.25(b).


text:
    STATE of Missouri, Respondent, v. Demun D. WALKER, Appellant.
    No. WD 71528.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    Margaret M. Johnston, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before VICTOR C. HOWARD, P.J., THOMAS H. NEWTON, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Mr. Demun D. Walker appeals from his conviction for endangering a corrections officer, section 565.085. He claims that the record does not demonstrate with “unmistakable clarity” that he knowingly and voluntarily waived the right to jury trial.

For reasons stated in the memorandum provided to the parties, we affirm. Rule 30.25(b).


author: JAMES EDWARD WELSH, Presiding Judge.

text:
    In the Matter of the ESTATE OF M. Stanley GINN, Deceased; Carrie Almond, Callie Almond, Carl Almond, and Christopher Almond, Respondents, v. Nancy Almond, Personal Representative and Individually, Appellant.
    No. WD 71554.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.

      John C. Davis, Susan F. Robertson, J. Zachary Bickel, Kansas City, MO, for Appellant.
    Dale C. Doerhoff, Jefferson City, MO, William P. DeVoy, Brookfield, MO, Bernard D. Simon, III, Columbia, MO, for Respondents.
    Before JAMES EDWARD WELSH, P.J., MARK D. PFEIFFER, and KAREN KING MITCHELL, JJ.
   JAMES EDWARD WELSH, Presiding Judge.

At issue in this case is the construction of M. Stanley Ginn’s will as to who bears the burden of paying estate taxes. Nancy Almond, daughter of Ginn and personal representative of Ginn’s estate, filed an amended six-count petition for will construction asking in one of the counts that the circuit court determine the testator’s intent regarding who should pay the estate taxes. Amond contended that the testator’s will did not clearly express who should bear the burden of paying the estate taxes and, therefore, the doctrine of equitable apportionment should apply in regard to the estate taxes. Ginn’s grandchildren, Carrie Almond, Callie Almond, Carl Almond, and Christopher Almond, filed an answer in response to the petition and filed a motion for judgment on the pleadings as to the claim for equitable apportionment. The grandchildren attached a legal opinion letter from a law firm which supported their position that the doctrine of equitable apportionment would not apply. The circuit court granted the grandchildren’s motion for judgment on the pleadings and found that Ginn’s intent was that the estate taxes were not to be equitably apportioned but were to be paid from the residuary estate. Nancy Almond appeals. She asserts that the circuit court erred in granting the motion for judgment on the pleadings because: (1) the motion improperly attached matters outside the petition and did not establish that the petition for will construction was factually insufficient as a matter of law or that she could not prevail under any legal theory; and (2) the doctrine of equitable apportionment applies given that Ginn did not express a clear intent that the residuary estate should pay the estate taxes.

Before we can reach the merits of Nancy Almond’s appeal, we must consider whether we have a final judgment in this case that invokes this court’s jurisdiction. Initially, the grandchildren argued that this court did not have jurisdiction over the appeal and filed a motion to dismiss.

In particular, the grandchildren asserted that, because the circuit court did not resolve all the issues in Nancy Almond’s six-count amended petition for will construction, the circuit court’s judgment denying the claim for equitable apportionment was not a final judgment, and therefore, this court lacked jurisdiction. At oral arguments, however, the grandchildren said that they were withdrawing the motion to dismiss. The abandonment of the motion to dismiss, however, does not resolve the jurisdiction issue. This court has a duty to determine whether it has jurisdiction to entertain the appeal. Couch v. W. Sur. (In the Estate of Couch), 920 S.W.2d 165, 167 (Mo.App.1996).

Generally, this court lacks appellate jurisdiction if we do not have an ap-pealable final judgment or order before us. Jones v. State, 307 S.W.3d 699, 700 (Mo.App.2010). Further, generally, orders from the probate division of the circuit court are “interlocutory and not subject to appeal until final disposition of the matters before the court.” Standley v. Standley (In the Estate of Standley), 204 S.W.3d 745, 748 (Mo.App.2006). “Section 472.160.1[, RSMo 2000], however, creates an expedited right to permissively appeal from certain interlocutory probate orders.” In the Estate of Straszynski, 265 S.W.3d 394, 395 (Mo.App.2008). “[I]f an order falls within the enumerated exceptions set forth in section 472.160.1, ... it is deemed final for purposes of appeal, and any interested and aggrieved person has the right to appeal.” Standley, 204 S.W.3d at 748. “Such expedited appeals serve the salutary purpose of allowing many matters of importance to be resolved while the estate is open, and prevents one complex appeal from all matters that occurred during the administration of the estate.” Id. (citations and internal quotation marks omitted). Although section 472.160 makes some interlocutory probate orders appeal-able, “it is well established that as to any specific proceeding, the rights of the parties must be fully adjudicated and all issues fully disposed of, or the order is not appealable.” Crabill v. Young (In re Estate of Ritter), 510 S.W.2d 188, 189 (Mo.App.1974).

Nancy Almond contends that the circuit court’s decision in this case falls within the enumerated cases set forth in section 472.160.1 and, therefore, she may file this interlocutory appeal. In particular, she relies on subsections (3) and (13) of section 472.160.1, which say:

Any interested person aggrieved thereby may appeal to the appropriate appellate court from the order, judgment or decree of the probate division of the circuit court in any of the following cases:
(3) On all apportionments among creditors, legatees or distributees;
(13) On all orders denying any of the foregoing requested actionsf.]

Nancy Almond asserts that the circuit court’s refusal to apply the doctrine of equitable apportionment in regard to estate taxes falls with these enumerated subsections. We disagree.

The action before the circuit court in this case was a will construction case and not an apportionment case. The circuit court was asked to determine whether the doctrine of equitable apportionment should be applied to Ginn’s estate in regard to the payment of estate taxes. In deciding this issue, the circuit court had to determine the intent of the testator — M. Stanley Ginn. This is not a case where the circuit court apportioned or refused to apportion property or shares to creditors, legatees, or distributees as to make it an appealable interlocutory order pursuant to section 472.160.1(3) and (13). See In re Estate of Ran, 708 S.W.2d 746, 747 (Mo. App.1986) (court found that circuit court’s judgment apportioning the estate among the descendants of the named legatees fell within the scope of appealable orders set forth in section 472.160 and therefore it had jurisdiction over the appeal). The circuit court merely found that the testator’s intent in this case was that the estate taxes were to be paid from the residuary estate and not from the specific bequests.

We recognize that, in Tindle v. Erwin (In re Estate of Erwin), 611 S.W.2d 564, 566-67 (Mo.App.1981), the court acknowledged that will construction issues are ap-pealable in connection with appealable matters set forth in section 472.160. In this case, however, we do not have an appealable matter that is set forth in section 472.160. The Erwin court also noted that will construction issues are appealable when fully determined. Id. at 567. But, unlike the fact scenario in Erwin, in this case all issues relating to the will construction were not fully determined by the circuit court, as the court had before it a six-count amended petition for will construction.

Moreover, for the circuit court to certify for appeal a judgment resolving fewer than all the claims, the judgment must expressly designate that there is “no just reason for delay.” Rule 74.01(b). Because the circuit court did not make such an express designation, the judgment is not final, and we must dismiss the appeal. Ruestman v. Ruestman, 69 S.W.3d 525, 528 (Mo.App.2002).

Therefore, because the circuit court’s order in this case does not fall within one of the enumerated subsections of section 472.160 and does not fully determine all the issues in the will construction action, we lack the jurisdiction to address the merits of Nancy Almond’s appeal and must dismiss the appeal. Smith v. Smith (In re Estate of Smith), 284 S.W.3d 198, 201 (Mo.App.2009); Erwin, 611 S.W.2d at 567. We, therefore, dismiss Nancy Almond’s appeal.

All concur.

      . In Jones, this court found that "[t]his issue remains jurisdictional, post Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009).” Jones, 307 S.W.3d at 700 n. 1. The Jones court said:
      While the Missouri Constitution grants the courts jurisdiction over civil actions (including post-conviction cases), it clearly contemplates both original and appellate jurisdiction, see MISSOURI CONSTITUTION, article V, sections 3 & 14, and it gives our Supreme Court power to "establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law.” MO. CONST, art. V, § 5. Supreme Court rules delineating the procedures for when and how trial court jurisdiction ends and appellate jurisdiction begins do not violate the Constitution or run afoul of the Supreme Court's holding in Webb.

        Id.

      . For example, in Estate of Cohen v. Crown, 954 S.W.2d 409 (Mo.App.1997), this court’s Eastern District decided an appeal in a will construction case concerning the intent of a testator in regard to apportionment of estate taxes. In that case, the only issue presented in the will construction case was the apportionment of estate taxes issue. See also In the Estate of Johnson, 803 S.W.2d 619 (Mo.App.1990); Nease v. Estate of Nease (In re Estate of Nease), 643 S.W.2d 97 (Mo.App.1982); Bell v.

        Bell (In re Estate of Wahlin), 505 S.W.2d 99 (Mo.App.1973).

      . On one of the counts in the petition, the circuit court granted Nancy Almond's motion for partial summary judgment as to the lease agreements relating to the Piney River property. The circuit court found that the lease agreements between Ginn Farm's Inc. and Carrie Almond were not enforceable due to abandonment by the parties prior to Ginn’s death. Moreover, in Count III, Nancy Almond asked that, if the court determined that the doctrine of equitable apportionment applied, the court give instructions on how to apportion the estate taxes attributed to property that is not qualified terminable interest property. Because the court determined that equitable apportionment did not apply, this issue would be moot.


text:
    Megan Eileen MUDD, Appellant, v. Paul Butler MUDD, Respondent.
    No. WD 72195.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    William P. Nacy, Jefferson City, MO, for Appellant.
    Sara C. Michael and Gaylin Rich Carver, Jefferson City, MO, for Respondent.
    Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

This case concerns the modification of a divorce decree. The issues are whether the circuit court erred in transferring custody of four children from the mother to the father, limiting the mother’s visitation of the children, and ordering a setoff of the father’s obligations against the mother’s obligations. We hold that it did not. Therefore, we affirm. Rule 84.16(b).


text:
    Mary Larue WALKER (Bronnenkant) and Gretchen Anne Collins, as Successor Co-Trustees of the Gretchen D. Collins Trust Dated May 27, 1999, Respondents, v. Gretchen D. COLLINS, Original Trustee of the Gretchen D. Collins Trust Dated May 27, 1999, Appellant.
    No. WD 72226.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    Lesa Bonnett, Macon, MO, for Appellant.
    Rex Gump, Moberly, MO, for Respondents.
    Before VICTOR C. HOWARD, P.J., THOMAS H. NEWTON, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Ms. Gretchen D. Collins appeals the trial court’s summary judgment in favor of her daughters, Ms. Mary LaRue Walker and Ms. Gretchen A. Anne Collins.

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