text:
    Siddeeq ABDUL-JALIL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-CA-000487-MR.
    Court of Appeals of Kentucky.
    Oct. 15, 2010.
    Bruce P. Hackett, Louisville, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, Jeffrey A. Cross, Assistant Attorney General, Frankfort, KY, for appellee.
    Before CAPERTON and WINE, Judges; LAMBERT, Senior Judge.

      . Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

CAPERTON, Judge:

Siddeeq Abdul-Jalil (Abdul-Jalil) appeals the September 5, 2007, denial by the Jefferson Circuit Court of his motion to suppress evidence discovered during the execution of a warrant to search the car he was driving on May 24, 2006. Having reviewed the parties’ arguments, the record, and the applicable law, we reverse and remand.

At 2:36 p.m. on May 24, 2006, the Louisville Metro Police Department (LMPD) received a call from an anonymous tipster who claimed to have information about the location of a handgun used in a recent homicide. According to the LMPD tip sheet, the anonymous caller gave a description of the suspected shooter as a black male who would be driving an older model Ford Crown Victoria. The caller stated that the car and the suspected shooter could be found at 2110 St. Xavier Street. The caller further specified that the handgun was still in the car and that a grey Chevy Astro sought in connection with the homicide could also be found at the aforementioned address.

In response to this tip, LMPD patrol officer Sean Hamilton (Officer Hamilton) set up surveillance of the residence located at the address given by the tipster. Approximately four hours passed between the time the tip was received and the arrival of the vehicle described by the tipster. Upon arrival at the residence, Abdul-Jalil, the driver and lone occupant of the vehicle, entered the house, emerged a short time later and departed in the tan car described in the tip. Officer Hamilton followed and stopped the car for traffic violations. In the process of the stop, Officer Hamilton noticed the driver make some “furtive” or “overt” movement that seemed to suggest that the driver was attempting to hide something under the front passenger seat. Officer Hamilton then approached the car and requested appellant’s license and registration. Upon returning to the vehicle, the officer requested consent to search the car, which appellant denied.

During the stop and after the denial of consent to search, Officer Hamilton had two phone conversations with Homicide Detective Gary Huffman. In these conversations Officer Hamilton expressed concerns that he was not able to arrest Abdul-Jalil for the traffic offenses. After the second conversation with Detective Huffman, Abdul-Jalil was removed from the car, and was told that the car was being impounded. Abdul-Jalil was allowed to leave on foot.

A warrant to search the car was issued based on a signed affidavit which reported the details of the anonymous tip as well as the observations of the officer. The execution of the search warrant resulted in the discovery of a handgun and various other items within the car including appellant’s birth certificate. A motion to suppress this evidence at trial was filed by Abdul-Jalil on May 21, 2007. This motion was denied by the Jefferson Circuit Court. After a mistrial due to the jury’s inability to reach a verdict, Abdul-Jalil then entered a conditional plea of guilty reserving the right to appeal the trial court’s denial of his motion to suppress.

Abdul-Jalil’s motion to suppress asserted that the impoundment of the vehicle following the issuance of a citation for traffic violations violated his Fourth Amendment rights. In its order denying Abdul-Jalil’s motion, the trial court stated that the corroboration of the information contained in the anonymous tip concerning the description of the vehicle, the license number, the location and street address of the vehicle, and the description of the driver, coupled with the conduct of the Abdul-Jalil when stopped, were sufficient to establish probable cause when considered in the totality of the circumstances.

Abdul-Jalil argues that the initial stop lacked the exigency needed to justify the seizure of the car. Abdul-Jalil further argues that the anonymous tip lacked the predictive quality required by our jurisprudence, and that reliance on a tip which lacks sufficiently predictive information cannot be corroborated and is, therefore, lacking as a basis for probable cause to seize his property.

The Commonwealth counter-argues that given the totality of the circumstances, the trial court was correct in denying appellant’s motion. In their brief to the court, the Commonwealth justifies the seizure of Appellant’s vehicle by claiming that there was probable cause to believe that the weapon would be found in the car and that if the car had not been impounded on the spot, the evidence would probably have been lost or destroyed.

The Commonwealth also argues that the sufficiency of the affidavit upon which the search warrant was issued was not properly preserved for argument before this court. Whether this argument was preserved is of no consequence to our ruling today as we hold that the initial seizure of Abdul-Jalil’s vehicle was unreasonable and in violation of the Fourth Amendment of the United States Constitution and Section Ten of the Kentucky Constitution. Therefore any evidence or information gained as a result of this seizure would be considered “the fruit of the poisonous tree” and should be suppressed. Wong Sun v. United States, 871 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Our standard when reviewing a trial court’s decision on a motion to suppress evidence is twofold. First, the factual findings of the trial court are conclusive if supported by substantial evidence. See Kentucky Rules of Criminal Procedure (RCr) 9.78. Second, we conduct a de novo review of the trial court’s application of the law to those facts to determine whether its decision is correct as a matter of law. Commonwealth v. Neal, 84 S.W.3d 920 (Ky.App.2002); see also Nichols v. Commonwealth, 186 S.W.3d 761 (Ky.App.2005).

Believing the issues pertaining to probable cause to be determinative, we shall address those first upon review.

The Fourth Amendment of the United States Constitution and Section Ten of the Kentucky Constitution prohibit unreasonable searches and seizures by police officers. Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998). The touchstone of all Fourth Amendment questions is “reasonableness.” Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). The question for us then becomes, was the impoundment of Abdul-Jalil’s vehicle reasonable under a Fourth Amendment analysis?

To serve as a basis for probable cause for search and seizure purposes, an anonymous tip must contain information which has at least moderate indicia of reliability, as well as predictive components which can be independently corroborated by police observations. Henson v. Commonwealth, 245 S.W.3d 745 (Ky.2008); Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The information to be corroborated cannot merely be information readily observable by any member of the general public and must “show that the tipster has knowledge of concealed criminal activity.” J.L., 529 U.S. at 272, 120 S.Ct. at 1379; Henson, 245 S.W.3d at 749.

The Commonwealth cites to the fact that the anonymous tipster identified the person who would be driving the car as a black male. The Commonwealth seems to equate this identification as determinative on the issue of the predictive nature of the anonymous tip. In Florida v. J.L., 529 U.S. at 272, 120 S.Ct. at 1379, the United States Supreme Court cautioned against finding corroboration simply because the person named or described in the tip is found in the place the tipster specifies. The anonymous tip in J.L. stated that a young black male carrying a gun and wearing a plaid shirt could be found standing near a certain bus stop. Officers located the individual described in the tip and conducted a frisk of his person which resulted in the discovery of a firearm. The Court held an investigatory stop of an individual based solely upon police corroboration of details which were readily observable by any member of the public to be unconstitutional. Without further information for the police to corroborate, and without any behavior on the part of J.L. that would indicate to the police that he was committing or about to commit a crime, the tip, by itself, was insufficient to serve as a basis for a stop and frisk.

In the case sub judice the tip lacked information that was adequately predictive, which Officer Hamilton could have corroborated to justify impounding the vehicle. Abdul-Jalil’s movement across the center console did not corroborate any aspect of the anonymous tip, and certainly did not give rise to suspicion that evidence of a crime would be found anywhere in the car other than the area within his immediate control. Even with due consideration given to the naturally exigent nature of vehicles established in California v. Acevedo, 500 U.S. 565, 569, 111 S.Ct. 1982, 1987, 114 L.Ed.2d 619 (1991) (citing Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)), the impoundment of Abdul-Jalil’s vehicle in this circumstance is constitutionally unreasonable.

It is true that the anonymous tipster in this case predicted that the person named in the tip would be found at the St. Xavier Street address as opposed to a tip that stated a person was currently at a certain address. This fact is essentially a non-issue considering the registered owner of the car lived at the address given and the driver of the car was the car owner’s paramour. It is safe to assume that the car and driver in this case would eventually end up at the address given under normal circumstances. This tip, viewed in light of what the officer knew at the time of the impoundment, lacked enough information to give the officer a “reasonable basis for suspecting ... unlawful conduct” sufficient to warrant the immediate impoundment of Abdul-Jalil’s car. J.L., 529 U.S. at 271, 120 S.Ct. at 1379. The court in J.L. further explained that:

An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be rehable in its assertion of illegality, not just in its tendency to identify a determined person.

Id., 529 U.S. at 272, 120 S.Ct. at 1379.

The United States Supreme Court in Alabama v. White considered the level of corroboration needed to establish the reliability of an anonymous tip. In White, the police received an anonymous tip which stated that a woman would be leaving an apartment at a specific time, in a specific car, and that the person would be headed to a specific motel. Police officers monitored the apartment and followed the suspect when she left the residence at the specified time and in the exact ear described in the tip. When it was clear to the police that the car was headed to the motel, the suspect was stopped and the car was searched. In upholding the search and seizure, the Supreme Court stated that their decision turned on the fact that “the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 245, 103 S.Ct. 2317, 2335, 76 L.Ed.2d 527 (1983)).

None of the information given by the tipster in this case shows that the tipster had special knowledge of Abdul-Jalil’s future actions other than the fact that he would eventually bring the car he was driving back to the residence of the owner of the car. The tip did not specify any timeframe during which this event would occur. The phrase “future actions of third parties ordinarily not easily predicted” used by the Court in White, 496 U.S. at 332, 110 S.Ct. at 2417 is particularly pertinent to the case at bar. As was stated before, it would be difficult to determine how many people possessed the knowledge given by the anonymous tipster in this case considering the car was found at its registered owner’s home, and was driven by the registered owner’s paramour. The level of predictive information given in the tip falls short of demonstrating any particularized knowledge that would not be available to those simply living on or frequenting St. Xavier Street.

The Commonwealth cites Wagner v. Commonwealth, 581 S.W.2d 352 (Ky.1979), which lays out circumstances where a war-rantless impoundment of a vehicle would be considered appropriate. Where this authority falls short in the case sub judice is the issue of probable cause. Nothing in the facts before us today would give a reasonable person in Officer Hamilton’s situation probable cause to believe that the car contained evidence which would be lost or destroyed absent immediate impoundment. As we have discussed previously, the details of the anonymous tip which were corroborated by Officer Hamilton were not sufficiently predictive to show the special knowledge required to establish the indicia of reliability needed for probable cause to be found.

The trial court quotes language found in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), in its order denying Appellant’s motion to suppress which states in part that constitutionally there is no difference between the seizure of an automobile for such time necessary to obtain a search warrant, and immediate impoundment. Chambers is good law but is misapplied to the case before us today. For the principal in Chambers to apply, probable cause must exist. As we have discussed, probable cause does not exist in the case at bar.

In the case of Commonwealth v. Brown, 250 S.W.3d 631 (Ky.2008), when faced with a Fourth Amendment issue the Supreme Court stated, “In examining this case as to the reasonableness of the officers’ action, we must pause and ask ourselves this question. What should the officers have done differently?” Id. at 636. In the instant case, Officer Hamilton had other, more constitutionally sound, courses of action that could have been taken.

The seizure of the vehicle which Abdul-Jalil was driving was lacking probable cause and is, therefore, unconstitutional in light of the Fourth Amendment to the United States Constitution and Section Ten of the Kentucky Constitution. The exigencies inherent in cases dealing with automobile searches and seizures are present, but do not justify the actions taken by law enforcement in this case.

Wherefore, for the foregoing reasons, we hereby reverse and remand for additional proceedings not inconsistent with this opinion.

ALL CONCUR.

      . The residence under surveillance was the home of the car’s registered owner, Candrell Lainaer. Lainaer was also the mother of Abdul-Jalil’s children.

      . The car described by the tipster as an “older model Crown Victoria” was actually a 1988 Lincoln Town Car.

      . Abdul-Jalil was given citations for excessive window tint and failure to use turn signal.

      . A High Point 9mm Luger was found in "plain view” between the driver and passenger seats. Subsequent ballistics tests of the weapon revealed that it was not involved in the homicide which had been mentioned in the tip.

      . Substantial evidence means "[e]vidence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence, ... has sufficient probative value to induce conviction in the minds of reasonable men." See Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003)(intemal quotations omitted).

      . J.L. involves the propriety of a stop and frisk. This case involves an issue of improper seizure of property. The cases are analogous however in that the quality of an anonymous tip was at issue in both. Further, both cases involved an analysis of the totality of circumstances surrounding police action in response to an anonymous tip.


source: Caselaw Access Project

author: THOMPSON, Judge:

license: Public Domain

text:
    N.K., a minor, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2010-CA-000041-ME.
    Court of Appeals of Kentucky.
    Oct. 15, 2010.

      Gail Robinson, Assistant Public Advocate, Dept, of Public Advocacy, Frankfort, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, Ken W. Riggs, Assistant Attorney General, Frankfort, KY, for appellee.
    Before KELLER and THOMPSON, Judges; HARRIS, Senior Judge.

      . Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

THOMPSON, Judge:

N.K., a minor, appeals from orders of the Carter Family Court finding him a habitual truant, in contempt of court and committing him to the Cabinet for Families and Children. Because the truancy complaint did not comply with KRS 630.060(2) and KRS 159.140, we vacate the orders. We also believe it necessary to resolve an issue relating to N.K’s admission to habitual truancy and the implication of the child’s right to be advised of his constitutional rights.

A status offense complaint was filed against N.K. alleging that he was a habitual truant. Attached to the complaint were school attendance records and a student profile that indicated N.K. had more than eleven unexcused absences.

N.K. appeared at his arraignment and counsel was appointed. The director of pupil personnel was present at the arraignment and informed the court that although he attempted two home visits, no one was home on either occasion. The court then advised N.K’s appointed counsel to discuss with N.K. whether he was willing to admit that he was a habitual truant. After a brief discussion among N.K., N.K’s mother, and counsel, counsel returned to the bench and stated, “I spoke with [N.K.] and his mother, and [N.K.] is willing to admit to a habitual truant.” However, N.K. neither admitted to habitual truancy nor was there a Boykin colloquy.

The family court then informed N.K. that he would be subject to the court’s order that required him to attend school, not leave school without permission, obey all rules at home, and use no alcohol or tobacco. A disposition hearing was scheduled for July 24, 2008. N.K. and his sister, also determined to be a habitual truant, appeared at the disposition hearing at which the prosecutor stated that N.K. had repeated school absences since the last court date. A contempt hearing was scheduled for July 81.

N.K. appeared at the contempt hearing where an agreement was reached that N.K. and his older sister would receive five-days’ detention until the end of the year and would be required to ride the school bus. After defense counsel confirmed the agreement, the court entered an order in conformity with its terms. At subsequent review hearings, it was reported that N.K. had complied with the court’s order. At the final review on December 18, 2008, the court granted the prosecutor’s request to remove N.K’s case from the active docket.

The case remained off the active docket until November 2009, when a second truancy complaint was filed alleging that N.K. had eight unexcused school absences and three unexcused tardies. No further allegations were made. N.K. and his counsel did not appear at the initial hearing. However, the court merged the new complaint with the first and scheduled a show cause hearing for December 10, 2009.

N.K. and his counsel appeared at the show cause hearing. The Commonwealth reported that N.K. had thirty-seven unexcused absences since the beginning of the 2009-2010 school year. N.K’s counsel requested a formal hearing because he had received only the show cause motion and had not been served with the second complaint and was unable to prepare a defense. The court refused his request stating that it was a simple case and, within minutes, commenced the hearing. Counsel stated that N.K. did not contest the absences but attributed the absences to chronic back pain that he suffered as a result of an automobile accident. Summarily, the family court rejected N.K.’s excuses and found N.K. in contempt and committed him to the Cabinet.

Having recited the factual and procedural history of the case, we now turn to the issue regarding compliance with the statutes applicable to truancy actions. Although not preserved, in T.D. v. Commonwealth, 165 S.W.3d 480 (Ky.App.2005), the Court held it is a matter of subject matter jurisdiction that cannot be waived. N.K. alleges that the truancy complaint must be dismissed because it did not comply with KRS 630.060(2) and KRS 159.140. The Commonwealth counters that dismissal is not required, but that should this Court conclude that the complaint was inadequate, remand is appropriate to permit the family court to conduct a hearing and render findings of fact regarding whether the statutory requirements were met. We begin our analysis with a review of the applicable statutes.

KRS 630.060(2) states:

No complaint shall be received by the court designated worker alleging habitual truancy unless an adequate assessment of the child has been performed pursuant to KRS 159.140(l)(c), (d), and (f), unless it can be shown that the assessment could not be performed due-to the child’s failure to participate.

Although the status offense of habitual truancy is not a criminal matter, it can have severe consequences for the child if the attendance terms are not met, including possible probation and detention. Thus, the legislature has imposed upon the director of personnel the duties set forth in KRS 159.140(1) as follows:

(c) Acquaint the school with the home conditions of a habitual truant as described in KRS 159.150(3), and the home with the work and advantages of the school;
(d) Ascertain the causes of irregular attendance and truancy, through documented contact with the custodian of the student, and seek the elimination of these causes;
(f) Attempt to visit the homes of students who are reported to be in need of books, clothing, or parental care....

This Court addressed the application of KRS 630.060(2) and KRS 159.140(1) in T.D., 165 S.W.3d 480, where we held that the director’s duties are mandatory and must be met as a prerequisite to bringing a child before the court as a habitual truant. “[B]ecause the language of the statute requires compliance before a complaint may be received, the legislature intended to make these requirements a matter of subject matter jurisdiction.” Id. at 482. Although the director’s duties may be burdensome, it was the intention of the legislature to make it “more rigorous” to resort to the court for intervention into a truancy matter. Id. The court observed that inevitably there are instances where, regardless of the efforts of the director of personnel, home visits are impossible and the ability to ascertain the causes of truancy are frustrated by a lack of cooperation by the student, parent, or guardian. If so, it is the duty of the court designated worker to determine if an adequate assessment has been performed. Id.

Despite the unambiguous language in the applicable statutes as interpreted in T.D., the complaint filed in this case was woefully inadequate. The “assessment” section required that the dates of visits to the home be stated and the conditions of the home be described. Yet, the Carter County School merely stated “Home visit 3/14/08.” The assessment section also required that the “causes of irregular attendance, efforts to eliminate these areas, the service plan implemented, the date services were attempted, and reasons for the failure of such service” be listed. In response, the Carter County School only stated that eight absences were excused and “11-65 Days” were unexcused without further detail.

This Court is aware that KRS 159.140(l)(f) was amended after the court’s decision in T.D. and now provides that the director “attempt to” visit the home of a student who is absent from school if the student is “reported to be in need of books, clothing, or parental care[.]” However, the General Assembly left unaltered KRS 630.060(2), which specifically controls in truancy matters and contains the mandatory directive that an adequate assessment of the child be performed pursuant to KRS 159.140(l)(c), (d), and (f). Thus, the requirement that the director visit the student’s home and be acquainted with the home’s conditions prior to filing a truancy complaint was left intact.

The Commonwealth contends that even if the complaint is inadequate, this Court should remedy the flaw by remanding the case for a hearing for the family court to render findings regarding compliance with the statutes. Even if we accepted the Commonwealth’s contention that the deficient complaint can be cured by evidence submitted after its filing, we cannot ignore the salient evidence that: (1) the director did not acquaint the school with the home conditions of the student; (2) the director did not acquaint the home with the work and advantages of the school; (3) the director did not determine the cause of the truancy through documented contact with the student’s custodian; and (4) the director did not seek elimination of the causes for truancy. Thus, we conclude that the truancy complaint should not have been received by the court designated worker and, as a consequence, the orders adjudging N.K. as a habitual truant and the order finding N.K. in contempt are vacated.

Although N.K.’s remaining arguments are rendered moot by our decision, we are disturbed by the procedural posture of this case and, as urged by the Commonwealth, conclude that the issue regarding the validity of N.K.’s admission is one that warrants discussion and clarification for future truancy adjudications. As the Commonwealth noted in its brief: “[A] troubling practice was followed by the Public Advocate, that unfortunately is recurring in family court cases.... ” We agree.

We stress that habitual truancy is a status offense and the proceeding is not criminal. Nevertheless, it is a judicial proceeding against a child relating to the fault of the child with possible severe consequences. As a result, the criminal protections provided by the constitution apply. T.D., 165 S.W.3d at 483.

A basic premise of constitutional law is that an admission of guilt for which the state may impose punishment must be freely, voluntarily and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The court is required to put forth the “utmost solicitude” in “canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.” Id., 395 U.S. at 243-44, 89 S.Ct. at 1712-13. Because the entry of a guilty plea or an admission to habitual truancy waives certain constitutional rights, the waiver of those rights cannot be presumed from a silent record. Hartsock v. Commonwealth, 505 S.W.2d 172 (Ky.1974).

The initial error in this case is that N.K. did not enter an admission to habitual truancy. The admission consisted solely of counsel stating that N.K. is “willing” to admit to being a habitual truant. The error was perpetuated when the family court failed to question N.K. if that was his admission and failed to advise N.K. of the potential consequences of the admission and question him to determine if he understood the consequences of his plea. Our conclusion reached in J.D. v. Commonwealth, 211 S.W.3d 60, 63 (Ky.App.2006), applies equally to habitual truancy proceedings:

We recognize that juvenile proceedings are by nature less formal than adult proceedings; and we are aware of the great number of cases most district judges handle. However, juvenile adjudication proceedings must meet constitutional muster, and this one does not. There was no colloquy whatsoever; and from the record it appears that the juvenile’s attorney responded to the district judge’s questions at the adjudication.

We hold that an admission to habitual truancy must be entered by the child, not by counsel. It is further held that the court is required to inform the child of his Boykin rights at the time it accepts the admission.

Based on the foregoing, the orders of the Carter Family Court adjudging N.K. a habitual truant and finding him in contempt and committing him to the Cabinet are vacated.

ALL CONCUR.


author: MARY R. RUSSELL, Judge.

text:
    LUCAS STUCCO & EIFS DESIGN, LLC, Respondent, v. Loren L. LANDAU, Appellant.
    No. SC 90771.
    Supreme Court of Missouri, En Banc.
    Oct. 26, 2010.
    Andrew J. Scavotto and John W. Motic-ka, Stinson Morrison Hecker LLP, St. Louis, for Landau.
    Norbert J.J. Glassl, Moser & Marsalek PC, St. Louis, for Lucas Stucco.
   MARY R. RUSSELL, Judge.

A contractor that was unpaid for its work filed suit against a property owner under the Private Prompt Payment Act (act), section 431.180. Although the contractor’s petition properly pleaded the elements of the act, there was no mention of its desire to seek attorney fees other than a specific request in the prayer. The parties dispute whether the contractor is entitled to the attorney fees that the trial court awarded. The judgment is affirmed because the contractor properly pleaded a cause of action under the act, and the specific request in the prayer was sufficient for such an award.

I. Background

Lucas Stucco & EIFS Design, LLC (Contractor) and Loren Landau (Owner) entered into a contract for the installation of the stucco finishing on Owner’s building. After the project was completed, Owner made two payments to Contractor, but a balance of $4,900 remained. Contractor filed suit, alleging breach of contract, action on account, quantum meruit, unjust enrichment, and detrimental reliance. Contractor’s prayers for relief to each count stated:

Contractor ... respectfully requests that this Court enter judgment in its favor, and against [Owner], for the sum of $4,900.00, together with interest at the legal rate (including prejudgment interest), award it reasonable attorneys’ fees and costs incurred in bringing this action, and grant such other and further relief as the Court deems just and proper.

When Contractor’s attorney communicated on the day of trial its intent to seek attorney fees pursuant to the act, the court granted Owner a one-week continuance. At trial, Owner argued that attorney fees under the act were not appropriate in this case. The trial court issued judgment in favor of Contractor in the amount of $4,900, plus attorney fees of $10,567.04. After disposition by the court of appeals, this Court granted transfer.

II. Analysis

Owner claims that the trial court erred in awarding attorney fees to Contractor because its petition made no mention of the act, nor did it set forth any basis that might allow Contractor to recover its attorney fees. The only mention of attorney fees was a specific request in the prayers following each count.

It is a question of law whether the award of attorney fees under the act was proper because the petition did not specifically mention the statute. See Roller v. Steelman, 297 S.W.3d 128, 131 (Mo.App.2009). This issue is given de novo review. Id.

The general rule in Missouri is that attorney fees are not awarded to every successful litigant. Harris v. Union Elec. Co., 766 S.W.2d 80, 89 (Mo. banc 1989). Attorney fees are recoverable in two situations: when a statute specifically authorizes recovery and when the contract provides for attorney fees. Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 657 (Mo. banc 2009). There was no provision for attorney fees in the contract between Contractor and Owner. Although Contractor’s request for attorney fees was premised on the statutory authorization in the act, the parties disagree whether the request was pleaded properly.

The act provides that “[a]ll persons who enter into a contract for private design or construction work ... shall make all scheduled payments pursuant to the terms of the contract.” Section 431.180.1. Any person who fails to make such payments may be subject to an action under this statute. Section 431.180.2. In resolving the action, “[t]he court may[,] in addition to any other award for damages, ... [award] reasonable attorney fees [ ] to the prevailing party.” Id.

Although the issue in this case is one of first impression, Vance Brothers, Inc. v. Obermiller Construction Services, Inc., 181 S.W.3d 562 (Mo. banc 2006), discussed the pleading requirements of the act. Vance concluded that there are two requirements for pleading a violation of the act: (1) the parties entered into a private construction contract; and (2) one or more payments were not made pursuant to the contract. Id. at 564.

Contractor pleaded these two requirements. The petition alleged that Contractor entered into a contract with Owner and that Owner made two payments for the work but a balance of $4,900 remained. In addition to requesting a judgment of $4,900 with interest, Contractor requested reasonable attorney fees in the prayer. The act does not require specific reference to the statute in the petition as a requirement to seek the relief it affords. Instead, a court may award any relief the statute provides, including attorney fees, as long as the party has pleaded the necessary elements of the act and has requested that relief in the prayer.

By alleging in the petition all of the elements necessary to bring a claim under the act, Contractor met the pleading requirements of the statute, such that a specific request for “reasonable attorneys’ fees” in the prayer may be granted. The trial court’s award for attorney fees pursuant to the act was proper.

III. Conclusion

The judgment is affirmed.

All concur.

      . Unless otherwise noted, all statutory references are to RSMo 2000, as amended by Supp.2009.

      . Jurisdiction is vested in this Court pursuant to article V, section 10 of the Missouri Constitution.

      . Prompt payment acts like the act "promote [ ] timely payment of contractors, subcontractors, and suppliers.” See Jerry Bennett Masonry, Inc. v. Crossland Constr. Co., 171 S.W.3d 81, 89 (Mo.App.2005) (construing the Prompt Payment Act, which governs public contracts). Absent this fee-shifting mechanism, the party who requested the work to be done would be able to avoid payment by delaying litigation indefinitely without consequence.

      . If the legislature intends the party to reference the statute specifically, it says so. See, e.g., section 290.140 (requiring a former employee of a corporation to reference the statute specifically in correspondence when requesting a service letter from the corporation).

      . Owner argues that attorney fees are special damages that must be pleaded specifically. See Miller v. Higgins, 452 S.W.2d 121, 125 (Mo.1970); Rule 55.19. He cites Conley v. Rauschenbach, 863 S.W.2d 617 (Mo.App.1993), and Washington University v. Royal Crown Bottling Co., 801 S.W.2d 458 (Mo.App.1990), to support his contention. In both cases, the award of attorney fees was reversed because fees were not specifically pleaded. However, both cases are distinguishable from the facts here. In Conley, there was no request for attorney fees in the pleadings or prayers. 863 S.W.2d at 620. And in Washington, although the party seeking attorney fees had alleged facts in the body of the petition giving rise to the claim for attorney fees, there was no mention of attorney fees in the prayer. 801 S.W.2d at 468. Here, the prayer specifically requested attorney fees.
      Owner also cites to Buckner v. Burnett, 908 S.W.2d 908 (Mo.App.1995), for the proposition that the prayer is not considered part of the petition. The petition in Burnett failed to allege the necessary elements to plead a purposeful violation of the sunshine law, despite the prayer seeking attorney fees. Id. at 911-12. This case is distinguishable because Owner's petition correctly pleaded the elements of an act violation in the body of the petition.


author: NANNETTE A. BAKER, Judge.

text:
    Stephanie WHIPPLE, Appellant, v. Ken ALLEN and Franklin Quick Cash, LLC, Respondents.
    No. ED 94495.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 19, 2010.

      Frank Carlson, Sarah Tupper, Co-Counsel, Union, MO, for appellant.
    Frederick Schwetye, Union, MO, John Reynolds, St. Louis, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Introduction

Stephanie Whipple (“Whipple”) appeals from the judgment of the Circuit Court of Franklin County granting Ken Allen’s (“Allen”) motion to dismiss for failure to state a claim upon which relief may be granted. Whipple claims the trial court erred in dismissing her First Amended Petition (“Petition”). We affirm in part and reverse in part.

Factual and Procedural Background

On August 1, 2008, Whipple filed a four count Petition alleging two claims for conversion (Counts I and III) and two claims of negligence (Counts II and IV) against Franklin Quick Cash, LLC (“FQC”) and Allen (collectively “Defendants”).

FQC is in the business of making title and payday loans, and Allen is the registered agent of FQC. In her Petition, Whipple contended that Allen and FQC took her 1998 Plymouth Voyager from her possession on two separate occasions. Whipple alleged that she was lawfully entitled to immediate possession of the vehicle and that Defendants acted without authorization. Whipple also alleged that she asked Defendants to surrender possession of the vehicle, but Defendants refused.

Allen filed a motion to dismiss the Petition for failure to state a claim upon which relief may be granted. The trial court granted the motion and dismissed the petition as to Allen. The trial court amended the final judgment and order to certify that there was no just reason to delay appeal. Whipple now appeals the trial court’s order dismissing her claims against Allen.

Standard of Review

We review de novo a trial court’s grant of a motion to dismiss.for failure to state a claim upon which relief may be granted. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). In reviewing a motion to dismiss, we construe the petition favorably to the plaintiff. Indus. Testing Labs., Inc. v. Thermal Science, Inc., 953 S.W.2d 144, 146 (Mo.App. E.D.1997). We assume all of the averments in the petition are true and grant the plaintiff all reasonable inferences therefrom. Gianella v. Gianella, 234 S.W.3d 526, 529 (Mo.App. E.D.2007). “We review the petition to determine whether the facts alleged meet the elements of a recognized cause of action .... If the allegations invoke the principles of substantive law entitling plaintiff to relief, the petition should not be dismissed.” Envirotech, Inc. v. Thomas, 259 S.W.3d 577, 585 (Mo.App. E.D.2008).

Discussion

In Whipple’s sole point on appeal, she argues that the trial court erred in dismissing the Petition for failure to state a claim because the Petition alleged each element necessary to state a claim for conversion and negligence. We agree that the Petition states claims for conversion but find that it fails to state a claim for negligence.

Missouri is a fact-pleading state. Jones v. St. Charles County, 181 S.W.3d 197, 202 (Mo.App. E.D.2005). The overall purpose of fact pleading is “to enable a person of common understanding to know what is intended.” M & H Enters. v. TriState Delta Chemicals, Inc., 984 S.W.2d 175, 181 (Mo.App. S.D.1998) (internal citation omitted).

A petition must contain a short and plain statement of the facts showing that the pleader is entitled to relief. Rule 55.05 , M & H Enters., 984 S.W.2d at 181. Though “[t]he petition need not plead evi-dentiary or operative facts showing an entitlement to the relief sought, it must plead ultimate facts demonstrating such an entitlement.” Williams v. Barnes & Noble, Inc. 174 S.W.3d 556, 559-60 (Mo.App. W.D.2005) (internal citation omitted). The petition cannot merely assert conclusions, and in determining whether a petition states a cause of action, we are to disregard conclusions not supported by facts. Id. at 560.

Conversion Claims

Counts I and III of the Petition set forth Whipple’s conversion claims against Allen.

“To state a claim for conversion, a plaintiff must plead and prove [1] that he was entitled to possession, [2] the defendant exercised unauthorized control and [3] the defendant deprived plaintiff of his right to possession.” Envirotech, Inc. v. Thomas, 259 S.W.3d at 592 (internal citations omitted).

The Petition alleges the following facts in paragraphs 8-9 (Count I) and paragraphs 22-23 (Count III):

On or about [March 8, 2005 in Count I and July 17, 2005 in Count III] in Franklin County, Missouri, defendants took from [Whipple] possession of [Whipple’s] motor vehicle, a 1998 Plymouth Voyager, at which time:
a. defendants were not authorized to assume ownership or possession of the said vehicle;
b. defendants intended to exercise control over the said vehicle;
c. defendants did so to the exclusion of [Whipple’s] rights in the said vehicle;
d. [Whipple] was the owner of the said vehicle;
e. [Whipple] was lawfully entitled to immediate possession of the said vehicle;
f. defendants appropriated the said vehicle to the use of defendants,
g. defendants thereby deprived [Whipple] of possession and control of the said vehicle.
Since the time of defendants’ said [March 8, 2005 in Count I and July 17, 2005 in Count III] appropriation of the vehicle, [Whipple] has demanded that defendants surrender the vehicle to [Whipple], but defendants have refused to do so.

The Petition asserts facts establishing that Whipple was the owner of the vehicle at the time of the alleged takings, that she was entitled to immediate possession, and that Defendants took the vehicle without authorization and exercised control over the vehicle to her exclusion. Furthermore, the Petition alleges that defendants refused to return the vehicle upon demand. These facts satisfy the elements of a conversion claim. We are confident that a person of common understanding would know that Whipple is alleging that on the dates specified, Defendants, without authority, took Whipple’s vehicle from her and refused to return the vehicle to her despite her demands.

Allen argues that the Petition is insufficient because it fails to make any allegations against him. However, the Petition specifically names Allen as a defendant and then references “defendants” throughout the Petition. Allen fails to cite this court to any authority that prevents a plaintiff from combining identical allegations against multiple defendants in the same paragraph. Though for purposes of clarity it may be beneficial for a plaintiff to separate identical allegations against different defendants, there is nothing that requires a plaintiff to do so.

Allen also argues that the Petition fails to state a claim because it fails to plead facts relating to the course and scope of the business relationship between Allen and FQC or necessary to pierce the corporate veil. The course and scope of Allen’s relationship with FQC and piercing the corporate veil are irrelevant to Whipple’s claims because she is not attempting to establish agency liability in this action. Her claims against Allen are based on actions that Allen allegedly took in his individual capacity.

Accordingly, the trial court erred in finding that Whipple did not state a claim upon which relief may be granted in Counts I and III of the Petition. This portion of Whipple’s point relied on is granted.

Negligence Claims

In Count II and Count IV, the Petition purports to state claims of negligence against Allen.

To state a claim for negligence, a plaintiff must plead facts that support each of the following elements: (1) the defendant had a duty to protect the plaintiff from injury; (2) the defendant breached that duty; and (3) the breach was the proximate cause of the plaintiffs injury. Stein v. Novus Equities Co., 284 S.W.3d 597, 604-05 (Mo.App. E.D.2009).

In Counts II and IV, the Petition merely incorporates the facts alleged in the conversion claims and makes a conclusory assertion that “Defendants’ aforesaid conduct was negligent.” The “aforesaid conduct” referenced by Whipple are the same facts that Whipple alleges in her conversion claims. However, negligence and conversion are fundamentally different causes of action, which require a plaintiff to plead different facts in order to sufficiently state a claim. Whipple fails to plead any facts that establish a duty or a breach of duty on the part of Allen. Whipple’s failure to plead these essential elements renders Counts II and IV of the Petition deficient.

As such, the trial court did not err in finding that Counts II and IV of the Petition fail to state claims upon which relief may be granted. This portion of Whipple’s point relied on is denied.

Conclusion

For the above stated reasons, we affirm . the part of the trial court’s judgment dismissing the negligence claims (Counts II and IV) against Allen. We reverse the part of the trial court’s judgment dismissing Whipple’s conversion claims (Counts I and III) against Allen. We remand for further proceedings consistent with this opinion.

KURT S. ODENWALD, P.J., and ROBERT G. DOWD, JR., J., concur.

      . All rule references are to Mo. Sup.Ct. R. (2008)


author: GARY W. LYNCH, Judge.

text:
    Ronald Garrett BLAND, Petitioner-Respondent, v. DIRECTOR OF REVENUE, Respondent-Appellant.
    No. SD 30350.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 22, 2010.

      Chris Koster, Attorney General, Jonathan H. Hale, Special Assistant Attorney General, Jefferson City, MO, for Appellant.
    Kyle E. Walsh, Moore, Walsh & Al-bright L.L.P., Poplar Bluff, MO, for Respondent.
   GARY W. LYNCH, Judge.

The Director of Revenue (“Director”) appeals from the trial court’s judgment ordering reinstatement of the driver’s license of Ronald Garrett Bland after administrative revocation pursuant to section 577.041, for Bland’s refusal to submit to a breathalyzer test after he was arrested for driving while intoxicated. Director contends that the trial court erroneously applied the law in reinstating Bland’s license “solely on the basis that speeding is not an [indicium] of intoxication.” Finding such error, we reverse the trial court’s judgment and remand with directions.

Factual and Procedural Background

Following administrative revocation of his driving privileges for refusal to submit to chemical testing, Bland sought review in the Circuit Court of Shannon County, in accordance with section 577.041.4. The parties appeared for hearing on December 15, 2009. Neither party requested a record be made of the proceeding, thus no transcript exists. Rather, according to the trial court’s judgment, “[t]he parties submitted the case upon the certified record of the [Director].” The judgment characterizes this record as the “undisputed facts.”

Director’s certified record consisted of Bland’s Missouri Driver Record; Director’s notice of revocation and fifteen-day driving permit (Form 4323); a five-page Alcohol Influence Report (Form 2389), which included the arresting officer’s Alcohol Influence Report Narrative; and a copy of the highway patrol’s uniform citation issued to Bland for the offense of driving while intoxicated. The arresting officer’s narrative disclosed the following.

On February 14, 2009, Corporal C.A. Hogue stopped Bland on U.S. Highway 60 in Shannon County, “for exceeding the posted 60 mile per hour speed limit by 22 miles per hour.” When he made contact with Bland, Corporal Hogue “noticed his eyes were bloodshot and glassy, his speech was slurred, and he had the strong odor of an alcoholic beverage about his person.” Hogue also observed that Bland “had a blank or staring look,” which Hogue noted he had observed “in many intoxicated subjects.” When Hogue inquired how much Bland had to drink, Bland denied having anything to drink. After Hogue instructed Bland to exit his vehicle and take a seat in his patrol car, Hogue noted that Bland “swayed while he walked and he walked with uncertainty.” Bland refused to participate in field sobriety testing when requested by Hogue and handed Hogue an attorney’s business card that stated on its back side that he did not want to take any sobriety tests. Hogue asked Bland if he was refusing “all my field sobriety tests,” and Bland stated he would not take any. Hogue determined that Bland was intoxicated and placed Bland under arrest.

After transport to the Shannon County Jail, Hogue “read [Bland] the implied consent.” Afterward, Hogue gave Bland a telephone book, provided a telephone, and allowed Bland twenty minutes in which to contact an attorney. Bland called his cousin. When Hogue asked Bland if he wanted to call his attorney, Bland stated he did not need to “because it could wait until the morning.” After twenty minutes, Hogue asked Bland if he would submit to a chemical test of his breath, and Bland refused. Hogue issued Bland uniform traffic citations for speeding, operating a motor vehicle without a valid license, and operating a motor vehicle while in an intoxicated condition.

On December 18, 2009, the trial court entered its judgment, which included the following findings:

The alcohol influence report reflects that the officer stopped [Bland] because he was speeding. When he approached the driver, the officer observed [Bland’s] eyes to be glassy and bloodshot. The driver’s speech was slurred. There was a strong odor of intoxicants on [Bland]. When asked if he had been drinking, [Bland] denied drinking alcohol. The officer also noted that [Bland] swayed when walking to the patrol car.
No field sobriety tests were administered as [Bland] refused to submit to them.

The trial court included in its judgment the following guidance in determining “whether the arresting officer had reasonable grounds to believe that the person was driving a motor vehicle while in an intoxicated condition”:

The probable cause required for the suspension or revocation of a driver’s license is the level of probable cause necessary to arrest a driver for an alcohol-related violation. Aron v. Director of Revenue, 737 S.W.2d 718, 719 (Mo. banc 1987). That level of probable cause will exist “when a police officer observes an unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the motorist.” Rain v. Director of Revenue, 46 S.W.3d 584, 587 (Mo.App.2001). Probable cause, for the purposes of section 802.505 will exist “when the surrounding facts and circumstances demonstrate to the senses of a reasonably prudent person that a particular offense has been or is being committed.” Smyth v. Director of Revenue, 57 S.W.3d 927, 930 (Mo.App.2001). The level of proof necessary to show probable cause under section 302.505 “is substantially less than that required to establish guilt beyond a reasonable doubt.” Id. “There is a ‘vast gulf between the quantum of information necessary to establish probable cause and the quantum of evidence required to prove guilt beyond a reasonable doubt.” Rain, 46 S.W.3d at 588. The trial court must assess the facts “by viewing the situation as it would have appeared to a prudent, cautious, and trained police officer.” Cox v. Director of Revenue, 37 S.W.3d 304, 307 (Mo.App.2000).

Brown v. Dir. of Revenue, 85 S.W.3d 1, 4 (Mo. banc 2002).

In the next paragraph, the trial court found that “[i]n applying the standard set out in Brown to the undisputed facts in this case the court finds that the officer had probable cause to believe that [Bland] was operating his motor vehicle while he was intoxicated.” Nevertheless, the trial court continued in that paragraph to state that

[t]he only fact not present in this case from those in which probable cause was found without the administration of the field sobriety tests is speeding. The officer stopped the vehicle because [Bland] was speeding and not because he observed any “erratic” driving by [Bland]. However, the standard only requires that the officer observe illegal operation of a motor vehicle. Speeding is an illegal operation of a motor vehicle. It does not support the second prong whether there are indicia of intoxication.

In its judgment, the trial court then sustained Bland’s petition for reinstatement and ordered Director to remove the revocation. Director timely appealed.

Standard of Review

On appeal, the judgment of the trial court will be affirmed unless there is no substantial evidence to support it, the judgment is against the weight of the evidence, or the trial court erroneously declared or applied the law. White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). No deference is given to the trial court’s findings in cases where, as here, the evidence is uncontested. Id. at 308. Evidence is deemed uncontested “when the issue before the trial court involves only stipulated facts and does not involve resolution by the trial court of contested testimony[.]” Id. In cases where the evidence is uncontested, “the only question before the appellate court is whether the trial court drew the proper legal conclusions from the facts stipulated.” Id. “If the trial court erroneously declared or applied the law, its judgment will be afforded no deference on appeal.” Pontius v. Dir. Revenue, 153 S.W.3d 1, 3 (Mo.App.2004).

Discussion

In her sole point relied on, Director contends that “[t]he trial court erred in reinstating Bland’s driver’s license because it erroneously applied the law in that the trial court did not find any relevant issue under § 577.041, RSMo, against the Director but ruled against the Director solely on the basis that speeding is not an [indici-um] of intoxication.” We agree.

“If a person’s license has been revoked because of the person’s refusal to submit to a chemical test, such person may petition for a hearing before a circuit or associate circuit court in the county in which the arrest or stop occurred.” § 577.041.4. In such proceedings, section 577.041.4 expressly limits the trial court’s inquiry regarding the revocation to three issues: whether the person was arrested or stopped; whether, in this case, the officer had reasonable grounds to believe that petitioner was driving while in an intoxicated or drugged condition; and whether petitioner refused to submit to a chemical test. § 577.041.4(1) — (3). “If the court determines any issue not to be in the affirmative, the court shall order the director to reinstate the license or permit to drive.” § 577.041.5. “Reasonable grounds,” as used in the second issue mentioned in section 577.041.4, is synonymous with probable cause. White, 321 S.W.3d at 305, n. 6; Guhr v. Dir. Revenue, 228 S.W.3d 581, 584 (Mo. banc 2007); Hinnah v. Dir. Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).

The uncontested record discloses that Bland was arrested and that he refused to submit to a chemical test. Thus, the first and third issues in the trial court’s inquiry under section 577.041.4 are in the affirmative.

As to the second issue in the trial court’s inquiry under section 577.041.4, the trial court specifically found that the officer had probable cause to believe that Bland was driving while he was intoxicated. This was a proper legal conclusion for the trial court to draw from the uncontested record.

“Probable cause ... exists when an officer observes a traffic violation or erratic vehicle operation and, after stopping the vehicle, notices indicia of driver intoxication.” White v. Dir. of Revenue, 946 S.W.2d 277, 279 (Mo.App.1997). Here, the arresting officer stopped Bland for speeding and, upon contact with him, observed the following: glassy and bloodshot eyes, slurred speech, a strong odor of intoxicants, swaying while walking, walking with uncertainty, and the refusal to submit to field sobriety tests. The odor of intoxicants, bloodshot eyes, slurred speech, and a driver’s refusal to submit to field sobriety tests have previously been held to be indicia of intoxication. Edwards v. Dir. of Revenue, 295 S.W.3d 909, 914 (Mo.App.2009). Likewise, erratic walking has been recognized as an indicium of intoxication. Hawkins v. Dir. of Revenue, 7 S.W.3d 549, 551 (Mo.App.1999). The trial court’s affirmative finding on this issue is correct regardless of whether Bland’s speeding, which prompted the initial stop, is considered an indicium of intoxication.

Under the uncontested record in this case, all three issues before the trial court under section 577.041.4 are in the affirmative. Section 577.041.5 provides for the reinstatement of Bland’s driver’s license only if one of those issues is not found to be in the affirmative. Therefore, the trial court’s judgment setting aside the revocation and reinstating Bland’s driver’s license misapplies the law as set forth in section 577.041 and is erroneous. Director’s point is granted.

Decision

The trial court’s judgment is reversed, and the case is remanded to the trial court with directions to enter a judgment affirming the Director’s revocation of Bland’s driver’s license.

BARNEY, P.J., and BURRELL, J., concur.

      . References to section 577.041 are to RSMo Cum.Supp.2009.

      . "Under the Implied Consent Law in section 577.020.1, a driver who drives on a public highway and who is arrested for driving while intoxicated is deemed to have consented to a chemical test to determine blood alcohol content.” Wilmoth v. Dir. of Revenue, 903 S.W.2d 595, 598 (Mo.App.1995). Pursuant to section 577.041.1, any request to submit to a chemical test "shall include the reasons of the officer for requesting the person to submit to a test and also shall inform the person that evidence of refusal to take the test may be used against such person and that the person’s license shall be immediately revoked upon refusal to take the test.” This advice is often referred to as the Implied Consent Law advice. See Wilmoth, 903 S.W.2d at 598.

      . According to section 577.041.1, a driver arrested for driving while intoxicated has “a limited right to seek the advice of an attorney before deciding whether to submit to chemical testing.” Wilmoth, 903 S.W.2d at 599.

      . White involved the review of a driver's license suspension under section 302.535, rather than the review of a revocation under section 577.041, as here. Because of the similarities in these statutes, however, our Supreme Court "has cited to section 577.041 cases interchangeably with section 302.535 cases when discussing the issues related to probable cause, the standard of review, and the deference given to implicit and explicit factual findings.” White, 321 S.W.3d at 305, n. 6. We do likewise in this opinion without any further indication or discussion.


text:
    Susan COLEMAN, as surviving heir of Ruthie Lacey, Deceased, Plaintiff-Respondent, v. James Darin MERITT, M.D., Defendant, and W.J. Stoecker, M.D., Defendant-Appellant.
    No. SD 30158.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 27, 2010.

      Michael J. Patton and Scott E. Bellm, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, MO, for Appellant.
    David M. Zevan and Kevin J. Davison, Zevan and Davidson, L.L.C., St. Louis, MO, for Respondent.
   GARY W. LYNCH, Judge.

W.J. Stoecker, M.D., appeals the trial court’s judgment awarding Susan Coleman post-judgment interest from April 26, 2007, to July 3, 2008, on a wrongful-death damage award. Stoecker contends that the trial court’s order entered on April 26 was not a judgment upon which post-judgment interest could accrue and that such a judgment was not entered until July 3, 2008. We agree, reverse the trial court’s judgment as to the date post-judgment interest began to accrue, hold that post-judgment interest did not begin to accrue until July 3, 2008, and remand the case for the trial court to enter judgment accordingly.

Factual and Procedural Background

Coleman originally filed suit for wrongful death against Stoecker and other defendants, including John Doe Corporation I and John Doe Defendant II, on September 20, 2002. The petition was amended by interlineation on September 11, 2006, to replace the previously named John Doe Defendant II with Cape Radiology Group, Inc.

A trial was held on March 21, 2007, after which the jury returned a verdict against Stoecker and another defendant, James Darin Meritt, M.D. Consistent with that verdict, the trial court, on April 26, 2007, filed an order -that it denominated as a “judgment,” awarding $1,197,500.00 in Coleman’s favor and against Stoecker and Merritt jointly and severally. Four months later, the trial court amended its “judgment” to cap Stoecker’s non-economic damages liability at $608,000. Neither the “judgment” nor its amendment made any reference to defendants John Doe Corporation I or Cape Radiology Group, Inc., or the claims brought against them.

Both Coleman and Stoecker appealed the April 2007 “judgment” to this Court, and on November 20, 2007, we issued an order for the parties to show cause why the appeal should not be dismissed for lack of a final judgment. In particular, we noted that the claims against John Doe Corporation I and Cape Radiology Group, Inc., appeared pending, and that a “judgment” that does not resolve all claims as to all parties is not a final judgment from which an appeal may be taken. Therefore, we did not yet have statutory authority to review the case. In response, the parties, on June 17, 2008, filed in the trial court a “Joint Motion of Parties for Entry of Order of Dismissal” in which they sought from the trial court a formal order dismissing John Doe Corporation I and Cape Radiology Group, Inc. On that day, the trial court issued an order, which was not denominated as a judgment and which recited, “a dismissal without prejudice should be entered of and for Defendants Cape Radiology Group, Inc. and John Doe Corporation I.” (Emphasis added).

On June 26, 2008, we issued a second order to show cause why the appeal should not be dismissed for lack of a final judgment. We explained that the trial court’s order on June 17, 2008, was not denom-mated as a “judgment,” as contemplated by Rule 74.01(a) and that it was unclear from the wording of the order as to whether the trial court intended this order to be its final ruling. On July 3, 2008, the trial court signed and filed an “Order and Judgment” dismissing John Doe Corporation I and Cape Radiology Group, Inc. The appeal proceeded, and the case was remanded to the trial court with directions to enter judgment in accordance with our opinion. See Coleman v. Meritt, 292 S.W.3d 339 (Mo.App.2009) (“Coleman I”).

The parties thereafter appeared before the trial court on September 25, 2009, to obtain a judgment in accordance with our opinion and mandate in Coleman I, but the parties were in disagreement as to the date post-judgment interest, as provided for under section 408.040, began to accrue. Coleman took the position that interest began to accrue on April 26, 2007— the date the first “judgment” was signed by the trial court. Stoecker contended that post-judgment interest did not begin until July 3, 2008, when the trial court issued its “Order and Judgment” dismissing the last two remaining parties. He argued that a written, final judgment that meets the requirements of Rule 74.01 is required before post-judgment interest can begin to accrue under section 408.040, and there was no such judgment in this case until July 3, 2008.

At the conclusion of the hearing on September 25, 2009, the trial court entered an amended judgment ordering that post-judgment interest began to accrue on April 26, 2007. Coleman filed a Partial Satisfaction of Judgment on October 6, 2009, acknowledging receipt of $1,336,030.01, in payment of the amended judgment except for that portion of the judgment awarding post-judgment interest from April 26, 2007, to July 3, 2008. Stoecker now appeals that disputed portion of the trial court’s judgment asserting that application of section 408.040 requires that we find post-judgment interest did not begin to accrue until July 3,2008.

Standard of Review

When we consider an appeal arising from the interpretation and application of a statute, our review is de novo. Johnson v. BFI Waste Sys. of N. Amer., 162 S.W.3d 127, 129 (Mo.App.2005). Accordingly, since the issue in this case is whether the trial court properly applied the statute relating to post-judgment interest, we review the trial court’s judgment independently, without deference to its conclusions. Id.

Discussion

Stoecker contends in his sole point on appeal that the trial court erred in awarding Coleman post-judgment interest commencing on April 26, 2007, as provided for on “judgments” in section 408.040. He argues that post-judgment interest on a “judgment” as provided by that section should only begin from July 3, 2008, the day the trial court issued its “Order and Judgment” dismissing John Doe Corporation I and Cape Radiology Group, Inc. Thus, the issue before us in considering the trial court’s award of post-judgment interest commencing on April 26, 2007, is whether a “judgment” within the meaning of section 408.040 existed on that date.

Section 408.040.1 provides, “Interest shall be allowed on all money due upon any judgment or order of any court from the day of rendering the same until satisfaction be made by payment, accord or sale of property[.]” (Emphasis added). The focus of the statute “is clearly upon identifying the judgment which creates a debt or right to collection.” Johnson, 162 S.W.3d at 129. Although the statute does not explain the meaning of “judgment,” the term is defined in Missouri Supreme Court Rule 74.01, and Missouri courts have relied on this rule in interpreting “judgment” for purposes of determining when post-judgment interest commences. See Lindquist v. Mid America Orthopaedic Surgery, Inc., 224 S.W.3d 593, 595 (Mo. banc 2007) (holding that, in accordance with 74.01(b), a judgment upon which post-judgment interest could accrue did not occur until the claims of all the parties had been adjudicated); Kansas City Power & Light Co. v. Bibb & Assocs., Inc., 197 S.W.3d 147, 160 (Mo.App.2006) (holding that, under section 408.040.1, a “judgment does not exist until the prerequisites of Rule 74.01(a) are met”).

Under Rule 74.01(a), a judgment “includes a decree and any order from which an appeal lies.” Indeed, a “ ‘prerequisite to appellate review' ” —and likewise, to the commencement of post-judgment interest— “ ‘is that there be a final judgment.’ ” Williams v. Westrip, 917 S.W.2d 590, 591 (Mo.App.1996) (quoting Comm. for Educ. Equality v. State, 878 S.W.2d 446, 450 (Mo. banc 1994)). A judgment is considered rendered when entered and is entered when “a writing signed by the judge and denominated ‘judgment’ or ‘decree’ is filed.” Rule 74.01(a).

Rule 74.01(b) adds the requirement that “any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties[.]” Thus, applying Rule 74.01(b) to section 408.040.1, a judgment that does not determine the claims as to all the parties in accordance with that rule is not a “judgment” that triggers the commencement of post-judgment interest under that statute. See, e.g., Lindquist, 224 S.W.3d at 595.

Here, the record reflects that the claims against two of the defendants named in the suit, John Doe Corporation I and Cape Radiology Group, Inc., had not been adjudicated and were still pending on April 26, 2007, the date the trial court held that post-judgment interest began to accrue. In the “judgment” it entered on that day, the trial court made no reference to either defendant or otherwise memorialized their dismissal from the case. As of that date, according to the trial court’s record, Coleman’s claims against these two parties were still pending because no written dismissal had been filed with the trial court nor had the trial court previously made any docket entry, order, or other type of notation reflecting their dismissal. At that time, nothing in the record suggested that these two parties had been dismissed. Thus, because the “judgment” on April 26, 2007, left unresolved the claims against John Doe Corporation I and Cape Radiology Group, Inc., it lacked the necessary finality to begin accruing post-judgment interest. We, in fact, made clear on November 20, 2007, in an order to show cause why the appeal should not be dismissed, that the April 26, 2007, judgment was not a final judgment because it did not determine the claims against John Doe Corporation I and Cape Radiology Group, Inc. In response, we were ultimately presented with a record that included the trial court’s July 3, 2008, order and judgment reciting that these defendants were dismissed on that date. Coleman I was thereafter decided premised upon the July 3, 2008, dismissal operating as a final adjudication of all claims as to all parties as required by Rule 74.01(b).

Coleman, nevertheless, argues that, irrespective of what the record in this case reflected, John Doe Corporation I and Cape Radiology Group, Inc., were dismissed by operation of law on November 9, 2006, when Coleman announced in “open court” she was voluntarily dismissing them. She further asserts that the trial court’s failure to note the dismissal on the November 9, 2006, docket entry was a clerical error for which she should not be penalized. In making these assertions, Coleman relies on a document entitled “Joint Motion of Parties for Entry of Order of Nunc Pro Tunc,” which the parties at one point apparently signed, asking the trial court to correct the record nunc pro tunc to reflect the dismissal and further requesting that it be entered retroactive to November 9, 2006.

The substance of this joint motion was first brought to the attention of the trial court at the hearing after remand on September 25, 2009. While the trial court received the motion as an exhibit at that hearing, before that date the motion itself was either never filed with the trial court or was filed and withdrawn by the parties. The docket sheet does not show an entry reflecting that the motion was ever filed. It does contain, however, an entry on December 6, 2007, reciting that a “Joint Motion of Parties for Entry of Order of Nunc Pro Tunc” was withdrawn with consent of plaintiff Coleman. Regardless, Coleman maintains that this withdrawn motion is an admission by Stoecker that Coleman orally dismissed John Doe Corporation I and Cape Radiology Group, Inc., on November 9, 2006.

Assuming such an admission, however, Coleman, nevertheless, fails to recognize that her use of this withdrawn motion is nothing more than an attempt to re-litigate an issue previously resolved in the final judgment entered by the trial court on July 8, 2008. That judgment dismissed John Doe Corporation I and Cape Radiology Group, Inc., on that date and, as a final judgment, served as the basis for the statutory authority of this Court to hear the prior appeal. While a part of the trial court’s judgment was reversed in that appeal, in all other respects, including the dismissal of John Doe Corporation I and Cape Radiology Group, Inc., on July 8, 2008, the trial court’s judgment was affirmed. Coleman I, 292 S.W.3d at 345. “The doctrine of law of the case provides that a previous holding in a case constitutes the law of the case and precludes relitigation of the issue on remand and subsequent appeal.” State ex rel. Alma Tel. Co. v. Pub. Serv. Comm’n, 40 S.W.3d 381, 388 (Mo.App.2001). The decision in the prior appeal “is the law of the case for all points presented and decided, as well as for matters that arose prior to the first adjudication and might have been raised but were not.” Id. (emphasis added).

We glean from her counsel’s signature on the joint motion and the docket entry showing her consent to the joint motion’s withdrawal that Coleman was well aware of the joint motion’s existence before December 6, 2007. Yet, for unknown but presumably strategic reasons, she chose not to pursue this issue with the trial court at that time and, rather, consented to its affirmative withdrawal from the trial court’s consideration on December 6, 2007; joined in a motion on June 17, 2008, requesting the trial court to dismiss the two defendants at that time; remained silent about it when the trial court, in response to her request, dismissed the two defendants on July 3, 2008; and failed to challenge the July 3, 2008, dismissal date in her first appeal. While Coleman may now lament her strategy in not pursuing the issue at that time, nothing in the record supports a discretionary departure from our application of the law-of-the-case doctrine to uphold the July 3, 2008, dismissal date as stated in the trial court’s judgment of that date. See, e.g., In re Estate of Corbin, 166 S.W.3d 102, 108 (Mo.App.2005) (doctrine of law of the case precluded re-litigation of issues that could have been raised in earlier proceeding but were not).

The law-of-the-case doctrine is “ ‘more than merely a courtesy: it is the very principle of ordered jurisdiction by which the courts administer justice.’ ” Id. at 106 (quoting Hankins v. Hankins, 864 S.W.2d 351, 353 (Mo.App.1993)). This order would be severely disrupted if we sanctioned Coleman’s tactical actions in withholding information from the trial court and requesting the trial court to take specific action and then allowed her to rely on that withheld information to challenge the very trial court action she requested in the first instance.

The orderly administration of justice is not only served by the law-of-the-case doctrine, but also by upholding the verity of the record. It is well settled that courts speak only through their records, and those records import absolute verity. State ex rel. Nassau v. Kohn, 731 S.W.2d 840, 843 (Mo. banc 1987). Coleman may believe in good faith that whatever she did on November 9, 2006, was sufficient to dismiss John Doe Corporation I and Cape Radiology Group, Inc. Perhaps there was even a mutual understanding between Stoecker and Coleman that the two parties were dismissed at that time. Yet, neither extra-judicial circumstance can provide the basis for our decision, because as a reviewing court, we “must make our determination not on the facts alleged to have happened, but on the facts shown by the record.” Thornton v. Deaconess Med. Ctr.-West Campus, 929 S.W.2d 872, 873 (Mo.App.1996). In Thornton, where the plaintiffs attempt to dismiss the defendants in a wrongful-death action by merely leaving a copy of his “memorandum of dismissal” in the judge’s chambers was deemed ineffective, the Court wrote, “[T]o allow parties to take action in a case without notifying the court of such action or without ensuring it is noted in the record would ultimately impede the orderly administration of court processes.” Thornton, 929 S.W.2d at 874.

A final judgment satisfying all of the Rule 74.01 requirements and upon which post-judgment interest could begin to accrue under section 408.040 was not entered until July 3, 2008, when the trial court filed an “Order and Judgment” that dismissed the previously omitted defendants. There can only be one judgment in a particular case. Fallin v. McClain, 639 S.W.2d 391, 391 (Mo.App.1982). Accordingly, there can never be one judgment for purposes of appeal and another judgment for purposes of determining the accrual of post-judgment interest. Because the final judgment in this case was entered on July 3, 2008, this is the date on which post-judgment interest under section 408.040 began to accrue. Stoecker’s first point is granted.

Decision

That part of the trial court’s judgment commencing post-judgment interest on April 26, 2007, is reversed, and the case is remanded to the trial court for entry of a judgment ordering that post-judgment interest began to accrue on July 3, 2008. In all other respects, the trial court’s judgment is affirmed.

BARNEY, P.J., and BURRELL, J., concur.

      . All rule references are to Missouri Court Rules (2010).

      . All references to section 408.040 are to RSMo 2000. Section 408.040 was amended in 2005 by H.B. 393. 2005 Mo. Laws 643-644. In his brief, Stoecker asserts that because this action was filed before the enactment of this bill, the pre-2005 version is applicable. See 2005 Mo. Laws 655. Coleman does not dispute this issue in her responding brief and references " § 408.040 (2004)” in her argument. During oral argument, both parties expressly stipulated that the pre-2005 version was applicable and that the trial court had used that version with their agreement and consent in rendering its judgment. Because both parties and the trial court relied upon the pre-2005 version and no one challenges that reliance on appeal, we will proceed to decide the case on the same basis without any further discussion and without making any determination as to the applicability of either version to the facts of this case.

      . Even though this Order was not included in the legal file, we take judicial notice of its existence, since courts may take judicial notice of their own records in prior proceedings which are between the same parties and involve the same basic facts. See Moore v. Missouri Dental Bd., 311 S.W.3d 298, 305 (Mo.App.2010).


text:
    C & W SPREADERS, L.L.C., a.k.a. CW Spreaders, L.L.C., Plaintiff-Respondent, v. Daniel WOSOBA, Defendant-Appellant.
    No. SD 30204.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 28, 2010.

      J.D. Baker, Baker Law Firm, Osceola, MO, for Appellant.
    Kendall R. Vickers, The Vickers Law Firm, Nevada, MO, for Respondent.
   GARY W. LYNCH, Judge.

Daniel Wosoba appeals from a $20,587.45 judgment in favor of CW Spreaders, L.L.C. (“the L.L.C.”). He claims that $13,987.55 of that amount, which the trial court awarded as damages for breach of contract as a result of his interference with the L.L.C.’s business relationship with a supplier, was in error because the contract at issue did not prohibit interference with a business relationship. We agree and reverse that part of the trial court’s judgment.

Factual and Procedural Background

We view the evidence in the light most favorable to the trial court’s judgment. Estate of Thompson v. Hicks, 148 S.W.3d 32, 35 (Mo.App.2004). Furthermore, as neither party requested that the trial court make written findings of fact and conclusions of law, “[a]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” Rule 73.01(c). Taken in that context, the following evidence was adduced at trial.

William Cary had been a friend of Floyd Wosoba and his son, Daniel, for several years. While Cary was “riding around somewhere” with Floyd, the two began discussing the use of poultry litter as fertilizer, and Floyd, a long-time farmer and fixture in the trucking industry, expressed his desire for Daniel, then eighteen years old, to get involved in the industry and have a steady income. Later on, all three men sat down to discuss setting up a business partnership between Cary and Daniel. In an attempt to assist in that planning, Floyd made multiple unreturned calls to George’s of Missouri (“George’s”), a poultry company located in Springdale, Arkansas. Cary, however, was eventually able to get in touch with Kendall Pender-graph — a long-time friend of Floyd’s and the general manager of George’s — and Cary, Daniel, and Floyd later met with Pendergraph. Out of that meeting came an arrangement for George’s to supply the new business venture with chicken litter.

Pendergraph agreed that George’s would sell the L.L.C. up to six loads of chicken litter per week at a price to be set by Pendergraph. The initial price was $6.00 per ton. Later, Pendergraph raised it to $8.00 per ton. Each load contained approximately 23 tons of litter. Other businesses in the area priced their chicken litter anywhere from $18.00 to $25.00 per ton. Pendergraph was willing to sell litter so cheaply because “it was not really a business deal for him[,]” and he just wanted “a reliable source” to haul away his litter. Pendergraph refused to put the arrangement in writing but told Cary and Daniel that he would honor the arrangement for five years. The L.L.C. was not the only company hauling away George’s litter.

After solidifying George’s as a supplier, in August 2007 Cary and Daniel created a limited liability company they named CW Spreaders, L.L.C. Cary’s wife drafted the operating agreement, which specified that, for purposes of managerial decision making, Cary would have a fifty-one percent interest in the company, while Daniel would have a forty-nine percent interest; the profits, however, would be split equally-

Following its creation, the L.L.C. purchased a spreader truck and trailer to use for the business. The truck was destroyed in an accident on May 23, 2008. The insurance proceeds more than covered the remaining loan on the vehicles, and the surplus was split evenly between Cary and Daniel. After the accident, the L.L.C. arranged in the short term for other individuals to truck the litter from George’s back to the L.L.C.’s base of operations but eventually began using a converted truck belonging to Daniel’s father. Floyd did not want compensation for the L.L.C.’s use of the truck, but the L.L.C. paid for the truck’s maintenance and fuel. The L.L.C. also rented a trailer to use for hauling.

In addition to the initial purchase of the spreader truck and trailer, the L.L.C. also purchased a loader and a bi-directional tractor, as well as another loader truck for parts, two buckets and a grapple for the tractor, and various other “odds and ends mechanical pieces.”

On August 19, 2008, Daniel told Cary that he no longer wanted to be involved with the L.L.C. Daniel asked Cary to “price the physical equipment” and Daniel would decide if he wanted to sell his share to Cary or purchase Cary’s share. Cary priced the L.L.C.’s equipment — a tractor, litter bed, loader truck, and GPS unit — at $10,000.00, plus the $22,000.00 owed in debt. Daniel chose to pay Cary $10,000.00, assume the $22,000.00 debt, and take possession of the L.L.C.’s equipment. Before approaching Cary about withdrawing from the business, Daniel had already purchased another spreader truck. Around that same time, Daniel purchased the trailer that the L.L.C. had been renting and using to haul litter.

In preparation for obtaining a loan to pay off the debt, Daniel asked Cary to write a letter he could give to the bank. The first document Cary prepared listed the items to be transferred and included a statement by Cary agreeing to “release [his] interest in the above items to Daniel Wosoba” for the agreed-upon price. The bank, however, found this document insufficient, and Daniel asked Cary to write a second letter and to include the serial numbers for the equipment that would be transferred to Daniel. In addition to listing each piece of equipment with its accompanying serial number and selling price, including the assumption of debt, the second letter included the following statement:

I agree to settle all remaining accounts of customers to date and turn over all monies to C & W Spreaders LLC as per our partnership agreement. I further agree not to interfere with C & W Spreaders LLC business or any contracts they currently hold (verbal or in writing) or in any way act as doing business as C & W Spreaders, or C & W Spreaders LLC etc. As per our agreement I will turn over to you the remaining parts of the wet kit removed from the wrecked 1999 Mack truck.

(Emphasis added). There was no mention of any of the L.L.C.’s other assets in the letter. Daniel signed the letter on August 25, 2008, and Cary acknowledged receipt of the letter that same day.

The next day, Cary withdrew $12,000.00 from the L.L.C.’s bank account and deposited the money in his own personal bank account. Shortly thereafter, Daniel withdrew the remaining money, $8,889.44, from the L.L.C.’s account and closed the account.

Following his withdrawal from the L.L.C. on August 25, 2008, Daniel began hauling litter from George’s the next week under the name “DW Farms.” From that time through the time of trial, he hauled from George’s on a fairly regular basis. Daniel continued to pay George’s $8.00 per ton of chicken litter. George’s allowed him to haul as many as fifteen loads per week. Floyd, under the name “Wosoba Trucking,” also hauled litter from George’s following Daniel’s withdrawal, mostly for his own personal use.

During the first week of October, Cary personally traveled to George’s in Spring-dale to arrange a meeting with Pender-graph, explain the situation to him, pick up a load of chicken litter, and continue with the litter-hauling arrangement. When he arrived Pendergraph told him that would be the last load George’s sold to the L.L.C.

Although the letter agreement was signed on August 25, 2008, consummation was not attempted until October 10, when Cary contacted the Wosobas to initiate exchange of the equipment and money at a neutral site. Cary expected Daniel to bring the $10,000.00 mentioned in the letter agreement, the money Daniel had collected from various outstanding accounts, and the wet kit for the truck. Daniel had already obtained financing for repayment of the loan. When he arrived, however, Daniel brought a copy of checks showing Cary’s withdrawal of funds from the L.L.C.’s account and attempted to give Cary a check for $4,000.00; Daniel explained his belief that half of the money Cary withdrew was his and should be applied as a credit toward the $10,000.00 he owed the L.L.C. for the equipment. Cary refused Daniel’s tender and asked for the full $10,000.00. When they reached an impasse, Cary attempted to leave with the equipment. Daniel and Floyd moved their vehicles and blocked Cary in, at which point Cary called the police. The responding law enforcement officers would not let Cary leave with the equipment, and everyone left without exchanging any money or property. At some point thereafter, Daniel took possession of the equipment.

Although he was unable to purchase litter from George’s, Cary continued operating the L.L.C. and hauling litter, albeit on an irregular basis. From the time of Daniel’s withdrawal from the L.L.C. through the time of trial, Cary bought and sold a total of 724.81 tons of poultry litter. Cary calculated that, had he been able to purchase the litter from George’s at the previously agreed-upon rate of $8.00 per ton, he would have made an additional $13,987.55 during that time period.

The L.L.C. filed suit against Daniel on November 26, 2008. In its petition, the L.L.C. set forth six counts alleging that: Daniel had taken possession of the truck, tractor, and accompanying accessories without tendering the $10,000.00 owed to the L.L.C. (Count I); Daniel “wrongfully converted to his own use” $18,964.04 from customers of the L.L.C. (Count II); Daniel wrongfully withdrew $8,889.44 from the L.L.C.’s checking account (Count III); after his withdrawal from the L.L.C., Daniel used the rental “end dump trailer” from mid-August 2008 through the end of September 2008 even though the L.L.C. had already paid rent on the trailer for that time period (Count IV); Daniel interfered with the “contract” between George’s and the L.L.C. and, as a result, caused the L.L.C. to lose approximately $15,000.00 in profits (Count V); and Daniel wrongfully retained possession of the “wet kit” following his withdrawal from the L.L.C. (Count VI).

Daniel denied the allegations in his answer but at trial admitted that he owed the L.L.C. a total of $2,559.71, an amount which took into account the remaining outstanding accounts receivable, the L.L.C.’s liquid assets, and the purchase of the L.L.C.’s equipment.

Following a bench trial, the trial court entered judgment in favor of the L.L.C. and against Daniel in the amount of $20,587.45, which included $13,987.55 for the L.L.C.’s lost profits under Count V of its petition. The trial court specifically found in its judgment that “[Daniel], through his father, acting as [Daniel’s] agent, did violate the terms of the August 25, 2008, letter agreement for the withdrawal of [Daniel] from the LLC, by interfering with [the L.L.C.’s] ongoing business relationship with George’s of Arkansas [sic], to [the L.L.C.’s] damages [sic] in the amount of ... ($13,987.55).” This appeal timely followed.

Standard of Review

As this was a court-tried case, we will affirm the trial court’s judgment “unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Mihlfeld & Assocs., Inc. v. Bishop & Bishop, L.L.C., 295 S.W.3d 163, 170 (Mo.App.2009).

Discussion

Daniel presents four points for our review; his first point, however, is disposi-tive. In his first point relied on, Daniel contends that

[t]he trial court erred in finding that [Daniel] materially breached an agreement with the [L.L.C] by interfering with an ongoing business relationship with George’s because the trial court improperly construed the contract provisions between [Daniel] and [the L.L.C] and erroneously applied the law of contracts by giving effect to its erroneous interpretation in that the trial court construed the agreement between [Daniel] and [the L.L.C] to restrict [Daniel] from interfering with a business relationship when the agreement between [Daniel] and [the L.L.C.] restricted interference with ‘contracts’ only.

Daniel’s argument on this point initially focuses on the L.L.C.’s contention in its petition and at trial that the arrangement between the L.L.C. and George’s was a “contract,” the interference with which by Daniel was prohibited by the letter agree-merit’s express prohibition as to “contracts.” The L.L.C.’s abandonment of that position on appeal and its adoption of the trial court’s characterization of that arrangement as a “business relationship” rather than a contract, however, has shifted the resolution of this point to Daniel’s secondary argument that the phrase “C & W Spreaders LLC business,” as used in the letter agreement creates an ambiguity in the letter agreement that should be construed against the L.L.C. and in his favor.

“The question of whether a contract is ambiguous and the interpretation of the contract itself are issues of law[.]” Executive Bd. of Mo. Baptist Convention v. Carnahan, 170 S.W.3d 437, 447 (Mo.App.2005); see also Royal Banks of Missouri v. Fridkin, 819 S.W.2d 359, 361 (Mo. banc 1991). We review issues of law de novo. Pierce v. BSC, Inc., 207 S.W.3d 619, 621 (Mo. banc 2006). We must thus examine, de novo, the withdrawal agreement to determine what, exactly, the parties agreed to with regard to Daniel’s actions following his withdrawal from the L.L.C.

Interpreting a contract requires that “[t]he plain, ordinary, and usual meaning of a contract’s words are used, and the whole document is considered.” Jackson County v. McClain Enters., Inc., 190 S.W.3d 633, 640 (Mo.App.2006). “A contract is ambiguous only if its terms are susceptible of more than one meaning so that reasonable men may fairly and honestly differ in their construction of the terms.” Helterbrand v. Five Star Mobile Home Sales, Inc., 48 S.W.3d 649, 658 (Mo.App.2001). Any ambiguity “must appear from the four corners of the contract^] extrinsic evidence cannot be used to create an ambiguity[,]” Erwin v. City of Palmyra, 119 S.W.3d 582, 585 (Mo.App.2003), and any ambiguity will be construed against the drafter of the contract. Triarch Indus., Inc. v. Crabtree, 158 S.W.3d 772, 776 (Mo. banc 2005).

While alleging in its petition and arguing at trial that the L.L.C.’s arrangement with George’s was a contract, the L.L.C. now abandons that position and concedes on appeal in its responding brief that it was not a contract. Thus, according to the L.L.C, the only issue before us “is whether this arrangement is ‘business’ of [the L.L.C.’s] that [Daniel] interfered with by doing business on his own with George’s after he severed his ties with [the L.L.C.].” The relevant sentence of the letter agreement reads, “I further agree not to interfere with C & W Spreaders LLC business or any contracts they currently hold (verbal or in writing) or in any way act as doing business as C & W Spreaders, or C & W Spreaders LLC etc.” (Emphasis added).

In order to support its findings on this issue in its judgment, the trial court implicitly concluded as a matter of law that the term “business” as used in this sentence is broad enough to include Daniel’s interference with others who are in a “business relationship” with the L.L.C. The L.L.C. assumes such a meaning in its argument on this point, spending the majority of this section in its responding brief discussing why the arrangement with George’s, even though not a contract, constituted a business relationship. While this is a reasonable construction of the meaning of “business” as used by the parties in their letter agreement, it is not the only reasonable construction.

The word “business” has a variety of meanings, two of which apply in the context of the letter agreement. On the one hand, “business” can mean “the purchase and sale of goods in an attempt to make a profit.” Random House Dictionary 283 (2d ed.1987). Such a definition includes the interaction between the L.L.C. and others in the purchase and sale of goods and, thus, encompasses the trial court’s broad interpretation as prohibiting Daniel from interfering with the business relationships of the L.L.C. On the other hand, however, “business” can also mean “a person, partnership, or corporation engaged in commerce, manufacturing, or a service[.]” Id. Thus, “business” can also more narrowly mean the L.L.C.’s engagement in commerce, which by definition includes the L.L.C.’s actions but not the actions of others who may be in a business relationship with the L.L.C. This meaning logically falls within the scope of the. letter agreement as a reasonable interpretation of “business” with which Daniel was not to interfere. It does not, however, support the trial court’s broad inclusion of business relationships within that prohibition.

The reasonableness of the narrower meaning of “business” is illustrated by Daniel’s testimony. When asked what he believed he was promising when he signed the withdrawal letter, Daniel stated, “I was not to interfere with C & W, as far as business, and I didn’t.” Daniel’s statement indicates that he perceived the withdrawal agreement as prohibiting his interference with the engagement of the L.L.C. in commerce, not as prohibiting his interference with any “business relationships” the L.L.C. might have had with others. Given the narrower dictionary definition of “business” supporting that view, we cannot say that Daniel’s perception is an unreasonable construction of the letter agreement’s reference to “C & W Spreaders LLC business.”

While we are required to construe the letter agreement considering only the language actually used by the parties, it is interesting to note, and the ambiguity is highlighted by the fact that, the drafter could have differentiated between these two meanings with just a slight change in wording depending upon his intent. For instance, if the drafter intended the broader meaning he could have used the possessive so that the letter agreement read “I further agree not to interfere with C & W Spreaders LLC’s business!.]” Similarly, if the drafter intended the narrower meaning he could have inserted the article “the” so that it read, “I further agree not to interfere with the C & W Spreaders LLC business!.]”

Reading only from the four corners of the letter agreement, however, this Court finds it impossible to discern which meaning of the word “business” the parties intended to employ, as reasonable men could fairly and honestly differ in their construction of the “business” with which Daniel was not to interfere. See Helterbrand, 48 S.W.3d at 658. Therefore, the term “business” as used in the context of the letter agreement creates an ambiguity that must be resolved.

As stated supra, any ambiguity must be construed against the drafter of the contract at issue, Triarch Industries, Inc., 158 S.W.3d at 776; in this case, Cary admitted that he drafted the withdrawal agreement on behalf of the L.L.C. We must therefore construe the term “business” against the L.L.C, rejecting the trial court’s broad interpretation of that term and accepting the narrower meaning of “business” that does not include business relationships.

Construing the ambiguity in the letter agreement against the L.L.C. and in Daniel’s favor means that even if Daniel continued to do business with George’s after he withdrew from the L.L.C. or Daniel’s agent contacted and urged George’s to discontinue selling to the L.L.C., such actions were not prohibited by the letter agreement and, thus, did not constitute a breach of contract. Daniel’s first point is granted.

Decision

That part of the trial court’s judgment against Daniel awarding the L.L.C. damages in the amount of $13,987.55 for lost profits under Count V of the L.L.C.’s petition is reversed. In all other respects, the trial court’s judgment is affirmed.

BARNEY, P.J., and BURRELL, J., concur.

      . All rule references are to Missouri Court Rules (2010).

      . Due to shared last names, for clarity we may sometimes refer to individuals by their first names. No familiarity or disrespect is intended.

      . Originally, the L.L.C. was named "C & W Spreaders, L.L.C,” but the name was later changed to remove the ampersand.