text:
    J.P. SHARP and Dorothy J. Sharp, Appellants/Cross-Respondents, v. Joyce CRAWFORD, Valisa Michelle Nelson, and Brian Alexander, Respondents/Cross-Appellants, and Jasper County Commissioners, Respondents.
    Nos. SD 29859, SD 29870.
    Missouri Court of Appeals, Southern District, Division One.
    June 8, 2010.

      Albert D. Johnson, Carthage, for Appellants.
    Ronald G. Sparlin, Joplin, for Respondents.
   ROBERT S. BARNEY, Judge.

The litigation giving rise to these consolidated appeals involves competing claims to quiet title to certain real properties on either side of a fence line; differing contentions as to the true location of the fence line; an action to recognize the vacation of an old county road or a declaration that the road had already been vacated by court order; and claims of damages for trespass and injunctive relief. Due to deficiencies in the trial court’s judgment, we are compelled to reverse and remand with directions.

In this consolidated appeal, J.P. Sharp (“Mr. Sharp”) and Dorothy J. Sharp (“Mrs. Sharp”) (collectively “Appellants”) appeal the trial court’s “Amended Findings of Fact, Conclusions of Law, and Judgment” (“the Amended Judgment”). They bring five points of trial court error. Joyce Crawford (“Mrs. Crawford”), Valisa Michelle Nelson (“Ms. Nelson”), and Brian Alexander (“Mr. Alexander”) (collectively “Respondents”) also appeal from the trial court’s judgment and they raise three points of trial court error.

Viewing the record in the light most favorable to the trial court’s judgment, Schroeder v. Proctor, 280 S.W.3d 724, 726 (Mo.App.2009), the record generally shows that Appellants are the owners of approximately sixteen acres located in Jasper County, Missouri. Their eastern property line adjoins the western property line of an approximately thirty-seven acre tract owned by Mrs. Crawford.

In 1968, Mrs. Crawford and her now deceased husband purchased their acreage which included the property now owned by Appellants. At that time, County Road 19C (“CR 19C”) crossed diagonally through this tract of land, then turned to the south and connected County Road 97 to Old Highway 66. Shortly after purchasing the property, Mrs. Crawford and her husband built a barbed wire fence several feet from the east side of CR 19C which ran parallel to the roadway. This fence has remained in that location since that time and Respondents have been responsible for maintaining the fence line. Both properties are located in a flood plain such that parts of the fence line would periodically get washed away, which necessitated repairs to various parts of the fence line by Respondents who would occasionally only be able to access their fence line by utilizing the property on the west side of the fence line belonging to Appellants.

In 1980, Mrs. Crawford, her husband and several other local landowners petitioned the Jasper County Commission to vacate CR 19C and have the road closed to the public. On August 11, 1980, the Commission entered “County Order No. 26” which directed that CR 19C be vacated.

In 1987, Appellants began negotiating with Mrs. Crawford to purchase the western sixteen acres of their larger tract. A survey of the property was commissioned and it was performed by Charles Miller (“Mr. Miller”). This survey revealed that CR 19C was located entirely on the property being considered for purchase by Appellants. Appellants ultimately purchased their property from Mrs. Crawford and her husband for $12,500.00, and Mrs. Crawford and her husband duly executed a general warranty deed at that time.

Following the death of Mrs. Crawford’s husband in 2003, Ms. Nelson and Mrs. Crawford became concerned about the exact location of the western boundary of Mrs. Crawford’s property. Appellants provided them with a copy of the survey performed by Mr. Miller, and Respondents then hired Allgeier, Martin and Associates, Inc. to perform a survey for them. Mon-nie Sears (“Mr. Sears”) was in charge of the survey. Mr. Sears also found that CR 19C was located entirely on Appellants’ property and generally agreed with the prior survey performed by Mr. Miller with the exception of the location of one post. Mr. Sears also determined that the western boundary of Respondents’ land ran essentially down an irregular fence line located just east of CR 19C.

In 2006, Appellants placed base rock on a large portion of CR 19C and built an asphalt driveway from County Road 197 to just south of their home and shop. They also placed a gate at the north end of the asphalt road near County Road 197 and another gate just south of their home where CR 19C crossed over a creek.

As previously related, throughout the time period from 1987 until 2006, the parties recognized the fence line as the boundary between their properties and Respondents maintained the actual fence.

The parties’ relationship began to deteriorate some time in 2006 when, according to Mrs. Sharp, Respondents cut down a honeysuckle plant which was growing on the fence line and that had been planted by Mrs. Sharp on her side of the fence. Thereafter, in maintaining the fence line Respondents burned brush and weeds which were located near the fence line but which were actually situated on Appellants’ side of the fence. Respondents contended that these incidents were merely related to their maintenance of their fence line and were not malicious in nature. At some point, according to Respondents, Appellants purportedly piled dirt and rocks against the fence such that when the creek flooded, the water flow slowed, put more pressure on the fences owned by Respondents, and impaired Respondents’ ability to repair the fence. The animosity between the parties continued to grow and law enforcement officials became involved in their squabbles on several occasions. Further, sometime in 2008 Appellants vacated their property altogether, relocated into town, and began looking for someone to purchase their property. According to Appellants, they had two contracts on their property fall through due to the dispute with Respondents about the boundary line and the issue relating to whether CR 19C was, indeed, a vacated road. On July 25, 2008, a restraining order was entered which forbade the movement of any fences in the disputed area around the fence line. This order was later modified on October 15, 2008, to also enjoin Appellants and their tenants from encroaching on Respondents’ land. On November 10, 2008, Appellants filed a petition for declaratory judgment pursuant to section 228.190, RSMo Cum.Supp.2007, against the Commissioners. In this petition, Appellants sought a declaration from the trial court that CR 19C had been abandoned and was no longer a public road. They asserted that in 1980 a court order was entered declaring CR 19C to be closed, that Jasper County blocked the entrances to the road at that time, that thereafter county funds were not expended for its upkeep, that per section 228.190, RSMo Cum.Supp.2007, the public had not been using the road for over five years, and that Appellants had actually been maintaining the road since they purchased their property in 1987. This was followed on November 20, 2008, with Appellants filing their three-count amended petition against Respondents. The foregoing claims were tried together.

In their first count for trespass, Appellants asserted the currently existing fence line was located entirely on their property and did not represent “the true boundary line” of the properties; that Respondents had regularly, intentionally, and repeatedly trespassed on their property by treating the fence line as if it belonged to them by cutting down honeysuckle vines and other plants on the fence line, by spraying chemicals on the fence line, by burning the ground on the fence line, by otherwise maintaining a fence which was not located on Respondents’ property, and by removing “a portion of the fencing;” and that they had requested Respondents cease and desist from such actions to no avail. They also asserted that due to these acts of trespass they suffered actual damages in the amount of $1,000.00 and also sought “exemplary” damages in the sum of $100,000.00.

In their second count, Appellants sought a restraining order and injunctive relief from the continued trespass on their property by Respondents, and from various acts of harassment and intimidation they and their guests had purportedly received at the hands of Respondents. Appellants asserted Respondents repeatedly had interfered with their use and enjoyment of their property such that irreparable harm had occurred to their property interests.

In their third count, Appellants sought to quiet title to that land described in the general warranty deed conveyed to them in 1987; asked the trial court “to define and adjudge by its judgment and decree that [they] are the fee simple owners of, in and to said real estate;” and further sought the trial court’s determination that Respondents have no right, title, or interest in and to the real estate. They further maintained that “there exists between the partiesf properties] an old fence which does not represent the true boundary line; that two surveys have been made of the lands based on their deeds and that both surveys show that the fence lies entirely on the property of [Appellants].” Appellants also pleaded adverse possession in that they “have been in open, notorious, exclusive, continuous, adverse, and hostile possession of the [property at issue] under color of title and under claim of ownership ...” for a period of time in excess of ten years.

On December 81, 2008, Respondents answered Appellants’ amended petition with particular denials and counterclaimed against Appellants. In count one of their counterclaim, Respondents sought a declaratory judgment pursuant to section 527.010, RSMo 2000, that the boundary line between the parties’ properties was located in the middle of “the abandoned road formerly known as CR 19C,” and that the existing fence line to the east had been erected by Respondents on property they legally owned.

As best we discern, in the second count of their counterclaim Respondents asserted that since 1987 until about 2006 the parties “acknowledged that each party owned contiguous real property that meets in the middle of an abandoned road formerly known as County Road 19C.” Respondents then requested a declaratory judgment from the trial court quieting title in themselves based on adverse possession to land described as being “located on the west edge of [Respondents’] property....” They maintained they had for ten years “been in actual, open, notorious, exclusive and continuous possession of the [property] under claim of ownership.” Respondents' then prayed for the trial court to enter a judgment determining Appellants “have no right, title, or interest in and to the [property] described in paragraph 6 above ....”

In their third count for trespass, Respondents alleged that “[b]etween the respective properties owned by the parties is an old abandoned road formerly known as [CR] 19C. Each party’s property has a common border that is located in the middle of said abandoned road.” They maintained Appellants repeatedly trespassed on their property by crossing over to their side of the aforementioned abandoned road; that Appellants “have bulldozed, torn down, removed, moved, and/or buried [Respondents’] erected fence line, fence posts and trees;” and that Appellants dumped “concrete, tile and other various objects onto [their] land.” As such, they posited entitlement to a judgment for damages in the amount of $5,000.00 and $100,000.00 in “exemplary/punitive” damages.

On May 4, 2009, following a bench trial, the trial court ultimately entered its Amended Judgment nunc pro tunc which consisted of six, single spaced pages. In pertinent part, the trial court’s Amended Judgment found that the 1980 court order vacating CR 19C was valid “and that CR 19C was vacated as the County Court followed the procedure to close a county road and that the legal description was sufficient to place land owners and the public on notice.” It further found that “even if the road had not been properly vacated by the County Court [in 1980] this Court would find CR 19C to be abandoned and vacat[ed] ...” under section 228.190, RSMo Cum.Supp.2007.

Additionally, the trial court found that the parties’ properties were located in a flood plain such that following heavy rains Respondents were often unable to access portions of their property due to rising waters and that during these times of flooding their only access to their property was by using former road CR 19C which is now Appellants’ driveway. As a result, the trial court found that section 272.110, RSMo Cum.Supp.2001, “allows [Respondents] to go onto [Appellants’] property and use their driveway and gravel road during or after flooding to check their fence line and to fix the fence if necessary.”

The trial court further determined that Respondents “have always maintained the fence line between the two properties at their expense;” that both parties “have always treated the fence as the property of [Respondents] and all property west of the fence line as the property of [Appellants] except for the portion by the creek bank and the road going to Highway 66; ” that “after flooding [Respondents] moved the fence line by necessity while rebuilding the fence ...;” and that Appellants were not damaged by this action. (Emphasis added).

The trial court also found that “[e]ven though the deed shows the property line of [Respondents] to run a little to the east of the fence in most areas ... the fence [is] the property of [Respondents];” that “any property that runs to the east of the fence line that would be [Appellants] under the deed description belongs to [Respondents];” and that “any property that runs to the west of the fence which the deed would grant [Respondents] remains the property of [Respondents].” (Emphasis added).

The trial court then “ORDERED AND ADJUDGED” that: CR 19C “is hereby ... abandoned and vacated and that said [CR] 19C is now the driveway and gravel road owned by [Appellants], and is the private property of [Appellants] ...;” it found “in favor of [Respondents] on Count I [for trespass] and Count II [for injunc-tive relief] of [Appellants’] Amended Petition ...;” it found “in favor of [Appellants] as to Count I of [Respondents’] counterclaim [for declaratory judgment which requested the trial court find the common border of the parties’ property was located in the in the middle of ‘abandoned’ CR 19C];” it found in relation to Respondents’ counterclaim Count II for quiet title that “each party has sole right, interest and title in their property per their [re]spective deeds except for the fence line as described above ..” and it found “in favor of [Appellants] on [Respondents’] counterclaim Count III [for trespass] and IV.” (Emphasis added). The trial court also ordered that “each party be responsible for their own cost.” These appeals followed.

“When reviewing a declaratory judgment, an appellate court’s standard of review is the same as in any other court-tried case.” Guyer v. City of Kirkwood, 38 5.W.3d 412, 413 (Mo. banc 2001); see McDermott v. Carnahan, 934 S.W.2d 285, 287 (Mo. banc 1996). “That is, the trial court’s decision should be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Guyer, 38 S.W.3d at 413; see Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In a court-tried case involving a quiet title action, review of the trial court’s judgment is also governed by the tenets espoused by Murphy, 536 S.W.2d at 32. Schroeder, 280 S.W.3d at 726. “All evidence and inferences are viewed in the light most favorable to the judgment, and all contrary evidence and inferences are disregarded.” Id. “Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses upon appellate review of a case tried without a jury.” McCord v. Gates, 159 S.W.3d 369, 373 (Mo.App.2004); see Rule 84.13(d)(2). “The trial court is vested with the discretion to believe or disbelieve all, part, or none of any witness’ testimony.” McCord, 159 S.W.3d at 373.

“Tn a quiet title action, where each party is claiming title against the other party, the burden of proof is upon each party to prove better title than that of his adversary. The claimant must rely upon the strength of his own title and not upon the weaknesses in the title of his opponent.’” McCord, 159 S.W.3d at 374 (quoting Shujfit v. Wade, 13 S.W.3d 329, 332-33 (Mo.App.2000)). “A suit to quiet title is a special statutory action to adjudge the respective estates, titles and interests of several claimants to land” and “[i]n order to prevail in a quiet title action, it is not necessary that plaintiffs establish an indefeasible title against the whole world, but only that their title is good as against the defendants.” Id.; see Moss v. Moss, 706 S.W.2d 884, 887 (Mo.App.1986). “Plaintiffs in a quiet title suit must succeed on the strength of their own title and if they fail to prove, prima facie, that they hold record title, their cause must fail.” McCord, 159 S.W.3d at 374.

We initially note that section 527.150, RSMo 2000, “permits a person claiming title or an interest in real estate to bring an action to determine the respective interests of the parties. The court in which a quiet title action is brought must adjudicate the interests of all the parties.” Main St Feeds, Inc. v. Hall, 975 S.W.2d 227, 233 (Mo.App.1998); see Pitts v. Pitts, 388 S.W.2d 337, 339 (Mo.1965). “This [C]ourt may not speculate, however, as to the grounds on which the trial court based its ruling. A judgment based on findings that are inconsistent and ambiguous does not permit appellate review [and] must be reversed.” Main St. Feeds, 975 S.W.2d at 233-34; see Burton v. Donahue, 959 S.W.2d 946, 948 (Mo.App.1998). Stated another way, a “judgment cannot stand when it is based on findings of fact which are antagonistic, inconsistent, or contradictory as to material matters, or when it is based on conclusions of law which are at variance with the findings of facts.” Don-nelly v. Donnelly, 951 S.W.2d 650, 653 (Mo.App.1997).

Turning to the judgment at hand, there appears to be a conflict between the trial court’s findings in a paragraph on page 5 of its Amended Judgment. To-wit the first full paragraph on page 5 of the Amended Judgment states:

[b]oth [Appellants] and [Respondents] have always treated the fence as the property of [Respondents] and all property east of the fence line as the property of [Respondents] and all property west of the fence line as the property of [Appellants] except for the portion by the creek bank and the old road going to Highway 66.

This should be contrasted with the trial court’s findings in the same paragraph that:

[e]ven though the deed shows the property line of [Respondents] to run a little to the east of the fence in most areas, the Court finds the fence to be the property of [Respondents]. The Court also finds any property that runs to the east of the fence line that would be [Appellants] under the deed description belongs to [Respondents]. The Court also finds any property that runs to the west of the fence which the deed would grant to [Respondents] remains the property of [Respondents].

(Emphasis added). Additionally, we are not certain which one of the two deeds entered into evidence the trial court is making reference to in its findings. “This [C]ourt is unable to definitively rule on the issues due to ambiguities and seeming inconsistencies in the trial court’s judgment.” Brick House Café & Pub., L.L.C. v. Callahan, 88 S.W.3d 43, 45 (Mo.App.2002).

Furthermore, we are at a loss to understand the exact meaning of the following paragraph:

IT IS FURTHER ORDERED AND ADJUDGED in [Respondents’] Counterclaim Count II that each party has sole right, interest and title in their property per their [respective deeds except for the fence line as described above.

In many respects, this judgment is remarkably similar to that which was found to be lacking in First Savings Bank v. Peters, 797 S.W.2d 574, 575 (Mo.App.1990). While the trial court has purportedly quieted title to each party in consonance with the legal description set out in their respective deeds, these deeds have not been described by metes and bounds in the judgment. Nor has the trial court recognized fee simple ownership of the respective parties. In particular, we cannot ascertain by the judgment the exact description by metes and bounds of the location of “any property that runs to the west of the fence which the deed would grant to [Respondents]....” Additionally, the precise location of the fence line is not delineated nor described with reasonable certainty at any point in the Amended Judgment. “It is all important that decrees affecting title to real estate should describe the land in question with certainty.” Williams v. Pemiscot Cty., 345 Mo. 415, 133 S.W.2d 417, 419 (1939); see Anderson v. Howald, 897 S.W.2d 176, 179 (Mo.App.1995) (holding that “[i]n a quiet title action, the judgment must describe with reasonable certainty the real estate affected by the decree”). “The judgment should be in a form so that it alone is suitable for recording in real estate records.” Creech v. Noyes, 78 S.W.3d 223, 225 (Mo.App.2002). “A judgment that fails to adequately describe the property leaves open the possibility of future adjudication regarding the scope and location of the property affected by the judgment, and necessarily requires proof from an external source.” Id. (Emphasis added). While we are empowered to enter the judgment “the court ought to give” pursuant to Rule 84.14, Missouri Court Rules (2009), we are unable to do so here because the legal descriptions of both the fence line and lands that have been quieted are “not readily apparent from the record.” Skinner v. Osage Cty., 822 S.W.2d 437, 443 (Mo.App.1991). Accordingly, the judgment must be reversed and the cause remanded for entry of a judgment in conformance with this opinion. See First State Savings Bank, 797 S.W.2d at 575. “If the trial court believes that additional evidence should be allowed [so that it may] be fully informed in adjudicating title ...,” or any other matter engendered by the pleadings, it may do so. Id. “If required, and we are not suggesting that it is, the trial court can direct a survey to determine the facts necessary for a proper judgment and to tax ...” the expenses as cost to both parties. Id.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

BATES, P.J., and BURRELL, J., Concur.

      . As is not unusual in these types of cases, the underlying matter was vigorously contested by both parties. We commend both the pa-hence and skill of the trial court during the course of litigation and the individual attorneys for their advocacy skills.

      . We note that although the Jasper County Commissioners ("the Commissioners”) were litigants below, they do not appear in this appeal.

      . Ms. Nelson is Mrs. Crawford’s daughter and Mr. Alexander is Ms. Nelson's companion. They reside together on this tract of land owned by Mrs. Crawford.

      . There is a clear dispute as to whether the legal description in the county’s order actually corresponded with the legal description for CR 19C. Appellants presented evidence and testimony at trial that CR 19C was the only road in the area that met the description set out in the court order. They maintained at trial, and in this appeal, that the road is an abandoned road. Respondents now maintain otherwise. One of the surveys entered into evidence in this matter sets out a metes and bounds description of CR 19C.

      . We note paragraph 6 of Respondents' second count is a metes and bounds description of what appears to be their entire tract of land.

      . We note there was no Count IV in Respondents’ counterclaim.

      . The trial court’s judgment in First Savings Bank, 797 S.W.2d at 575, did not contain a legal description and contained only the following judgment:
      [a]nd now on this 30 day of October, 1989, the Court takes from advisement this cause and considers the petition for quiet title in Count I filed by plaintiff, and the plaintiff's petition in Count II for slander of title, and on plaintiff’s petition against the defendants Gerald Peters and Forest Lynch, the Court enters judgment in favor of said defendants and against the plaintiff on Count I, and judgment for the said defendants and against the plaintiff on Count II, with all costs taxed to the plaintiff.
      And now the Court considers the third party petition filed by third party plaintiffs, Robert D. Strong and Maty E. Strong, against the third party defendants named herein, and the Court enters judgment in favor of third party defendants and against third party plaintiffs, with all costs taxed to the plaintiffs.
      WHEREFORE, IT IS THE ORDER, JUDGMENT AND DECREE OF THIS COURT, that the defendants Gerald Peters and Forest Lynch have judgment against the plaintiff on Count I of plaintiff's petition for quiet title, and on Count II for slander of title.
      It is the further order of the Court that third party defendants named have judgment on the issues raised by the third party plaintiffs named, with all costs in this cause taxed to the plaintiff.

        SO ORDERED.


source: Caselaw Access Project

author: GEORGE W. DRAPER III, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. David DIENSTBACH, Jr., Appellant.
    No. ED 93837.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 15, 2010.

      Harry M. Swingle, John N. Koester, Jackson, MO, for Appellant.
    Jeffrey P. Dix, Jackson, MO, for Respondent.
   OPINION

GEORGE W. DRAPER III, Judge.

This is an interlocutory appeal filed by the State of Missouri pursuant to Section 547.200.1(3) RSMo (2000) challenging the trial court’s judgment sustaining David W. Dienstbach’s (hereinafter, “Defendant”) motion to suppress. The State raises one point on appeal, arguing the trial court erred in sustaining the motion to suppress in that the Missouri State Highway Patrol (hereinafter, “the MHP”) trooper had jurisdiction and authority to make a traffic stop on a city street when he observed Defendant violating a state traffic law. We reverse and remand.

On May 31, 2009, Trooper Ron Eakins (hereinafter, “Trooper Eakins”) was on patrol at 1:24 a.m. in the City of Cape Girar-deau, near the intersection of Perry Street and New Madrid Street. Trooper Eakins observed a Ford F-250 truck driving “completely on the wrong side of the road.” Trooper Eakins watched the truck approach the intersection and did not believe the truck was going to come to a stop. However, when the driver of the truck saw Trooper Eakins in a marked patrol vehicle, he “slammed” on his brakes.

The truck continued traveling down New Madrid Street on the wrong side of the street, prompting Trooper Eakins to activate his emergency lights to pull over the truck. Trooper Eakins made a U-turn on Perry Street to follow the truck, while the driver of the truck pulled into a private driveway and turned off the truck’s headlights. Trooper Eakins believed the driver did this in order to avoid him.

Trooper Eakins pulled up behind the truck and made contact with the driver, who was identified as Defendant. Trooper Eakins immediately noticed an odor of alcohol when speaking to Defendant, his speech was slurred, and his eyes were red, glassy, bloodshot, and watery. Trooper Eakins asked Defendant to step out of the vehicle while he called for assistance because there were four other individuals inside the truck.

Defendant was charged with four misdemeanor counts and one infraction as a result of the stop: (1) driving while intoxicated, Section 577.010; (2) driving without a valid license, Section 302.020; (3) possession of an intoxicating liquor by a minor, Section 311.352; (4) failing to register a motor vehicle, Section 301.020; and (5) failing to wear a seatbelt, Section 307.178. Defendant filed a motion to suppress evidence alleging the traffic stop lacked probable cause because Trooper Eakins and Defendant were acquainted and Defendant alleged Trooper Eakins “simply wanted to check things out” when he stopped him. Defendant filed an amended motion to suppress the day before the hearing, stating Trooper Eakins “had no authority to pull [Defendant] over on a city street for violation of a city ordinance” as an additional ground for relief.

At the hearing, the parties focused on the legality of the stop and did not address or present any evidence gathered after Defendant was asked to exit the vehicle. Trooper Eakins was the sole witness to testify at the hearing. At the conclusion of his testimony, Trooper Eakins stated Defendant committed the driving violation on a city street, but stated, “It’s still classified as a highway.” The trial court clarified with Trooper Eakins that the violation occurred on a city street, rather than a county road or state highway.

In its judgment sustaining Defendant’s motion, the trial court found Defendant was stopped on a city street, as opposed to a county road or state highway, and Defendant was not committing any felony charge at the time of the stop. The trial court noted there was no evidence or testimony presented that a member of the local police department had requested Trooper Eakins assist in any investigation that was ongoing or presently occurring. The trial court found Defendant’s arrest was unlawful and suppressed Defendant’s statements, the field sobriety test results, the breathalyzer results, and all other evidence obtained by Trooper Eakins during and after the stop. The State filed this interlocutory appeal.

When reviewing a trial court’s ruling on a motion to suppress, we must determine whether the decision is supported by substantial evidence. State v. Johnson, 207 S.W.3d 24, 44 (Mo. banc 2006); State v. Ross, 254 S.W.3d 267, 272 (Mo.App. E.D. 2008). We will consider all evidence and reasonable inferences therefrom in the light most favorable to the trial court’s ruling. Id. We defer to the trial court’s factual findings and credibility determinations. State v. Sund, 215 S.W.3d 719, 728 (Mo. banc 2007); State v. Dickson, 252 S.W.Bd 216, 220 (Mo.App. E.D.2008). We will reverse a trial court’s ruling on a motion to suppress only if the decision is clearly erroneous and leaves us with a definite and firm impression that a mistake has been made. State v. Dixon, 218 S.W.3d 14,18 (Mo.App. W.D.2007).

In its sole point on appeal, the State argues the trial court clearly erred in granting Defendant’s motion to suppress. The State claims Trooper Eakins had the jurisdiction and authority to make a traffic stop on a city street when he viewed Defendant violating a state law, and as such, Defendant’s arrest was legal.

Chapter 43 of the Missouri Revised Statutes governs the MHP. Section 43.025.1 provides the primary purpose of the MHP “is to enforce the traffic laws and promote safety upon the highways.” “Highway” is not defined for purposes of this chapter. Cf. Section 43.010. Section 43.160 lists the duties of the MHP, which include policing “the highways constructed and maintained by the commission.” Defendant argues this language defines what constitutes a “highway” and limits the MHP’s jurisdiction to only “highways constructed and maintained by the commission,” prohibiting the troopers from policing city streets in local municipalities. We disagree.

This Court engaged in a comprehensive discussion of the definition of “highway” in Covert v. Fisher, 151 S.W.3d 70 (Mo.App. E.D.2004). In Covert, we affirmed a driver’s license suspension for driving a golf cart while intoxicated on the streets of a private subdivision. Id. at 72. The driver argued the golf cart was not a motor vehicle because golf carts are not used on highways. Id. at 74. After holding the golf cart was a motor vehicle for purposes of Chapter 302, we considered whether a street in a private subdivision was encompassed within the definition of “highway.” Id. After a thorough statutory and prece-dential analysis, this Court held a privately owned street was considered a “highway” as the term was used in Chapter 302 when there is evidence the streets are open for use and used by the public. Id. at 77.

Without repeating the extensive reasoning contained within Covert, several key points from that holding guide our analysis here. First, Covert noted, “Over the years, as the legislature enacted more expanded provisions governing motor vehicles and separated these provisions into different chapters, it continued to define ‘highway in identical language” as used in its inception since 1921. Id. at 74-75. Second, Covert discussed the first Missouri Supreme Court case to construe the term “highway”, which held “highway was used in the statute ‘in its popular rather than its technical sense, and was intended to include all highways traveled by the public, regardless of their legal status.’ ” Id. at 75 (quoting Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065, 1068 (1930)); see also State v. Dunn, 147 S.W.3d 75, 78 (Mo. banc 2004). Thus, the word “highway” as construed in Phillips applied to “any road of the state where the public is accustomed to travel.” Covert, 151 S.W.3d at 75. Finally, Covert found the legislature’s subsequent reenactment of the statutory definition of “highway” using the same language construed by the Missouri Supreme Court in Phillips presumed such construction was contemplated by the legislature. Id. at 77.

Turning to the case at bar, Defendant’s reliance on Section 43.160 to limit the parameters of the MHP’s jurisdiction over the roadways to only “highways constructed and maintained by the commission” would constrain the MHP to the point of rendering it virtually powerless. Further, this construction is contradictory to our holding in Covert construing the definition of “highway” to include all highways traveled by the public, regardless of their legal status.

Moreover, Defendant’s construction of Section 43.160 is at odds with other Chapter 43 provisions which enumerate the powers of the MHP to investigate and arrest individuals. For instance, Section 43.180 states MHP members “shall have full power and authority ... in the arrest of anyone violating any law in their presence.” Section 43.190 grants MHP members the authority to “arrest ... any person detected by him in the act of violating any law of this state,” Section 43.195 provides MHP members with the explicit authority to “arrest on view, and without a warrant, any person he sees violating or who he has reasonable grounds to believe has violated any law of this state relating to the operation of motor vehicles.” Likewise, Section 544.216 explicitly empowers any MHP member to “arrest on view, and without a warrant, any person the officer sees violating or who such officer has reasonable grounds to believe has violated any law of this state, including a misdemeanor or infraction ...” (Emphasis added to all provisions).

Thus, it is clear Trooper Eakins was acting within his jurisdiction when patrolling the city streets of Cape Girardeau. He was empowered to investigate or arrest any individual he observed violating the law of this state, including misdemeanors, infractions, and state laws relating to the operation of motor vehicles, not merely felonies that occur on “highways constructed and maintained by the commission” as found by the trial court below. Moreover, Trooper Eakins was not required to seek permission or authorization from any local law enforcement official before initiating the stop.

Turning to the legality of the stop, an analogous argument to the one Defendant raises here was rejected in State v. Moore, 271 S.W.3d 641 (Mo.App. S.D.2008). In Moore, the driver was stopped by a MHP trooper when he failed to signal when making a left turn onto a county road. Id. at 642. The driver appeared intoxicated and was convicted of driving while intoxicated, a class A misdemeanor. Id. at 641-42. On appeal, the driver argued the trial court erred in denying his motion to suppress evidence obtained during the traffic stop in that the evidence was the result of an unlawful seizure. The driver argued Section 304.019.1(3) requires drivers to signal to make a left turn only on “highways constructed or maintained by the state highway and transportation commission ... ”, and here, the failure to signal occurred on a county road. Id. at 642. After examining the definitions of “roadway” and “state highway”, the Southern District turned to Section 304.025.1, the section defining the term “highway” whenever the term is used in Section 304.019.1(3). The court noted Section 304.025.1 defined “highway” as “any public road or thoroughfare for vehicles, including state roads, county roads, and public streets, avenues, boulevards, parkways or alleys in any municipality.” Id. at 643. Therefore, a county road was contained within the statutory definition of “highway” as applied to the traffic offense, and as such, the trafile stop was lawful. Id.

Similarly, in the case at bar, Section 304.015.2 requires “[u]pon all public roads or highways of sufficient width a vehicle shall be driven upon the right half of the roadway ...” except in certain circumstances which do not apply here. For purposes of this section, “highway” is defined as “any public thoroughfare for vehicles, including state roads, county roads, and public streets, avenues, boulevards, parkways, or alleys in any municipality.” Section 301.010(19). It is undisputed Trooper Eakins observed Defendant driving on the wrong side of a city street, which is what prompted the traffic stop. As stated previously, a city street falls within the definition of a “highway” per the holding in Covert and for purposes of Section 304.015.2. “A routine traffic stop based upon an officer’s observation of a violation of state traffic laws is a reasonable seizure under the Fourth Amendment.” Sund, 215 S.W.3d at 723. Therefore the traffic stop was lawful.

With respect -to the legality of the arrest, the record reflects Trooper Eakins observed Defendant violating Section 304.015.2, a state traffic law, by driving on the wrong side of a city street. After stopping Defendant, Trooper Eakins indicated he immediately noticed Defendant’s eyes were red, glassy, bloodshot, and watery, his speech was slurred, and there was a strong odor of intoxicants coming from his breath as he spoke. After administering field sobriety tests, Trooper Eakins determined Defendant to be intoxicated and arrested him.

Section 43.190 authorized Trooper Eakins to “arrest ... any person detected by him in the act of violating any law of this state.” Section 43.195 likewise granted Trooper Eakins explicit authority to “arrest on view, and without a warrant, any person he sees violating or who he has reasonable grounds to believe has violated any law of this state relating to the operation of motor vehicles.” Contrary to the trial court’s ruling, nothing in either of these statutes confines Trooper Eakins’ authority to arrest an individual for felony charges only, in that these statutes expressly state the authority to arrest extends to a violation of “any law of this state.” Indeed, Trooper Eakins could have relied on Section 544.216, which specifically empowered him to “arrest on view, and without a warrant, any person the officer sees violating or who such officer has reasonable grounds to believe has violated any law of this state, including a misdemeanor or infraction ...” Here, Trooper Eakins had reasonable grounds to believe Defendant violated at least one state law relating to the operation of a motor vehicle prior to the stop, and more violations became apparent after the stop. Thus, Trooper Eakins was statutorily authorized to arrest Defendant for these violations, even if these violations were merely misdemeanors or infractions.

Based on the foregoing, we find the trial court’s judgment sustaining Defendant’s motion to suppress was clearly erroneous given that the traffic stop and resulting arrest were lawful. State v. Simmons, 186 S.W.3d 418, 423 (Mo.App. S.D.2006). The State’s point on appeal is granted. We reverse the trial court’s judgment sustaining Defendant’s motion to suppress and remand for further proceedings consistent with this opinion.

KURT S. ODENWALD, P.J., and GARY M. GAERTNER, JR., J„ concur.

      . All statutory references are to RSMo (2000) unless otherwise indicated. Section 547.200.1(3) permits the State, through the prosecuting attorney’s office, to take an appeal from a judgment that results in the suppression of evidence.


author: KATHIANNE KNAUP CRANE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff/Respondent, v. Michael JACKSON, Defendant/Appellant.
    No. ED 93104.
    Missouri Court of Appeals, Eastern District, Division One.
    June 15, 2010.

      Timothy Forneris, Assistant Public Defender, Office of the Missouri Public Defender, St. Louis, MO, for appellant.
    Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for respondent.
   KATHIANNE KNAUP CRANE, Presiding Judge.

Defendant, Michael Jackson, appeals from a judgment entered on a jury verdict finding him guilty of second-degree murder, in violation of section 565.021 RSMo (2000). The trial court sentenced defendant to twenty-five years imprisonment.

On appeal, defendant contends the trial court erred in overruling his motion to strike a venireperson for cause and overruling his objection to the admission of the victim’s autopsy report that did not include the toxicology screening. We affirm.

Defendant does not challenge the sufficiency of the evidence. On June 2, 2007, the police found defendant alone with the victim in a parked truck. The victim was “twitching,” and did not have a pulse. A medical examiner performed an autopsy on the victim and concluded that the victim died from manual strangulation.

I. Motion to Strike for Cause

In his first point, defendant contends the trial court abused its discretion in overruling his motion to strike venire-person S.R. for cause because venireper-son S.R. had prior knowledge of the case in that he worked with the paramedics who responded to the homicide and venireper-son S.R. had discussed the incident with them.

The trial court is in the best position to observe and evaluate a venire-person’s qualifications to serve as a juror and has broad discretion in making this determination after considering the entire examination of the venireperson. Joy v. Morrison, 254 S.W.3d 885, 888 (Mo. banc 2008) (quoting State v. Christeson, 50 S.W.3d 251, 264 (Mo. banc 2001)). We will not disturb the trial court’s ruling on a motion to strike for cause unless there has been a clear showing of an abuse of discretion. Joy, 254 S.W.3d at 888.

Venireperson S.R. was employed as a firefighter and paramedic, and was assigned as a substitute worker for the station that responded to the scene of the homicide. Venireperson S.R. was not involved in the investigation, but he worked with and briefly discussed the homicide with the other paramedics who had responded.

During voir dire, the state asked venire-person S.R. whether anything discussed with the responding paramedics would affect his ability to sit on the jury and venireperson S.R. responded, “I don’t think so.” The state asked him whether he would be able to keep an open mind until he heard all the evidence, and venire-person S.R. responded, “Sure.” The state then read a list of people who were involved in the case, which included two paramedics. Venireperson S.R. responded that he knew the two paramedics, but could hold their testimony on the same level as the other witnesses.

Defense counsel then moved that venire-person S.R. be stricken for cause for the reason that venireperson S.R. talked to the responding paramedics when they returned from the homicide and that he knew facts and details that could prejudice his ability to listen to the evidence in the case.

Venireperson S.R. was thereupon examined at a sidebar. Defense counsel asked him to explain what he knew about the case. Venireperson S.R. indicated that while he was driving to work, he passed by the vehicle where the victim was found; that for the rest of the day he worked with the paramedics who responded; and that he remembered “some vague details.” Defense counsel asked him what details he remembered, and venireperson S.R. answered that he remembered the paramedics telling him that a woman was found and that she had been “dead for awhile.” Venireperson S.R. indicated that there was nothing about that information that would affect his ability to listen to the evidence in the case, that he would judge the paramedics’ testimony on the same level as other testimony, and that he could make a decision based solely on what he heard in court. The court denied the motion to strike for cause, and venireperson S.R. served on the jury.

“[P]rior knowledge about a case does not, per se, require that a potential juror be stricken when such knowledge does not preclude them from reaching a verdict based upon the evidence.” State v. Walton, 796 S.W.2d 374, 378 (Mo. banc 1990). A potential juror is qualified to serve on the jury if he or she is familiar with some of the facts of a case, but does not have an opinion on the defendant’s guilt or innocence. Id.; State v. Goble, 946 S.W.2d 16, 19 (Mo.App.1997). Further, a venireperson’s friendship with a witness for a party, in itself, does not require that the venireperson be stricken for cause. Walton, 796 S.W.2d at 378. The factors that would disqualify a prospective juror are whether the prospective juror has formed an opinion of guilt or innocence and whether his or her knowledge, acquaintance, or friendship would preclude him or her from reaching a verdict based only on the evidence. Goble, 946 S.W.2d at 19. A prospective juror must “unequivocally indicate [ ] an ability to evaluate the evidence fairly and impartially.” State v. Storey, 901 S.W.2d 886, 894 (Mo. banc 1995). The trial court is in the best position to determine the venireperson’s ability to impartially follow the law. Walton, 796 S.W.2d at 378.

The trial court did not abuse its discretion in overruling defendant’s motion to strike venireperson S.R. for cause. We view the entire examination of venireper-son S.R., including the sidebar discussion. Venireperson S.R. unequivocally indicated that none of his prior knowledge about the case would affect his ability to listen to the evidence presented, that he could evaluate the evidence fairly and impartially, and that he could make a decision based only on the evidence presented in court. The entire examination of venireperson S.R. removed any doubt about his ability to act as a fair and impartial juror and therefore, venireperson S.R. was qualified to sit on the jury. See State v. Kirksey, 725 S.W.2d 611, 617 (Mo.App.1987). Point one is denied.

II. Admission of Autopsy Report

In his second point, defendant contends the trial court abused its discretion “in overruling [his] objection to the state’s exclusion of the toxicology screening from the autopsy report.” He claims that the exclusion of the toxicology screening prevented him from presenting evidence that the victim had overdosed because of her cocaine consumption, and this evidence was relevant in the jury’s determination of whether defendant was guilty of murder or manslaughter.

A trial court has broad discretion to admit or exclude evidence at trial, and we will only reverse a trial court’s ruling on the admission of evidence if the court has clearly abused its discretion. State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007). Additionally, we review for prejudice, not mere error, and we will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. Id.

At trial, the medical examiner who performed the autopsy on the victim testified, and the state offered the autopsy report into evidence. Defense counsel objected, stating:

I’m not objecting to the part that she has, but, however, it has been severed from the rest of the report which I believe is just the toxicology screening. So I would ask that the entire report, including the toxicology screening, be admitted into evidence if she is going to admit part of the report.

The state responded that it had filed a motion in limine on the toxicology issue. The trial court acknowledged that it would be permissible to ask the medical examiner what substances the victim had in her system and what effect those would have had on her. The trial court explained that drug levels are not within a juror’s common knowledge. The trial court said, “If this witness can testify as to ... what the effects of certain levels are, then you might be able to get [the toxicology report] in through this witness.”

The trial court admitted the autopsy report into evidence. The prosecutor indicated to defense counsel, “I’ve got the other report handy so if you need it to cross or do whatever, I have it.” Defense counsel responded, “Okay.”

During cross-examination, defense counsel asked the medical examiner whether toxicology screening was done on the victim, and the medical examiner answered, ‘Tes.” The medical examiner subsequently testified to the blood alcohol content of the victim’s system, and what it meant. Defense counsel continued:

Q: Were there any other substances found within her body? Not telling me what the levels were, but just other drugs in her body.
A:Yes.
Q: What were those drugs?
A: Cocaine was found in her body.
Q: Now when you performed your autopsy did you take any swabs or scrapings from the neck area?
A: No.
MS. TAAFFE: I have nothing further, Judge.

Defendant did not question the medical examiner about the drug levels or the effects of drug levels and did not offer the toxicology screening into evidence.

The medical examiner then testified on redirect examination that manual strangulation was the cause of the victim’s death, and any drugs or alcohol the victim had in her system did not contribute to her death.

The rule of completeness provides that “where either party introduces part of an act, occurrence, or transaction, the opposing party is entitled to introduce or inquire into other parts of the whole....” State ex rel. Kemper v. Vincent, 191 S.W.3d 45, 50 (Mo. banc 2006). This rule seeks to ensure that an exhibit is not admitted out of context. See State v. Skillicom, 944 S.W.2d 877, 891 (Mo. banc 1997), overruled on other grounds by Joy, 254 S.W.3d at 889. The adverse party is entitled to introduce or to inquire into other parts of the whole exhibit in order to explain or rebut adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced. Kemper, 191 S.W.3d at 50.

Defendant’s claim of error is directed to trial court error in overruling his objection to the admission of the autopsy report without the toxicology screening. However, defendant does not contend in his point on appeal that the trial court precluded him from introducing the toxicology screening. Missouri courts indicate that if the rule of completeness applies, it is satisfied by a procedure in which after one party introduces a portion of an exhibit or admission into evidence, the adverse party may then introduce the remaining portion. See, e.g., State v. Yole, 136 S.W.3d 175, 179 (Mo.App.2004). See also William A. Schroeder, Missouri Practice, Missouri Evidence, § 106.1 (3rd Ed.2007). Error arises if the court precludes the adverse party from introducing evidence admissible under the rule of completeness. State v. Francis, 60 S.W.3d 662, 674 (Mo.App.2001). An adverse party cannot complain of the admission of an incomplete exhibit if that party does not offer the other portions into evidence. Id. See also Krame v. Waller, 849 S.W.2d 236, 240 (Mo.App.1993). The trial court said that defendant could introduce the toxicology screening through the medical examiner on cross-examination, after establishing the meaning of the drug levels shown, but defendant did not attempt to do so, and he did not thereafter attempt to introduce it in any other manner. Under these circumstances, defendant has not shown any abuse of discretion, much less prejudice. See Francis, 60 S.W.3d at 674.

Point two is denied.

Conclusion

The judgment of the trial court is affirmed.

CLIFFORD H. AHRENS, J. and NANNETTE A. BAKER, J., concur.

      . All further statutory references are to RSMo (2000), unless otherwise indicated.


author: KURT S. ODENWALD, Presiding Judge.

text:
    Gene WREN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93732.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 15, 2010.

      Gwenda Renee Robinson, Missouri Public Defender Office, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Gene Wren (Movant) appeals from the motion court’s denial, following an eviden-tiary hearing, of his amended Rule 29.15 motion for post-conviction relief. This Court affirmed Movant’s convictions, following a jury trial, of leaving the scene of a motor vehicle accident, in violation of Section 577.060, RSMo 2000, careless and imprudent driving, in violation of Section 304.012, and driving without a valid license, in violation of Section 302.020. State v. Wren, 276 S.W.3d 880 (Mo.App. E.D.2009). We affirm the motion court’s denial of Movant’s claims of ineffective assistance of counsel.

Background

On August 22, 2007, Movant was charged by Information with the class D felony of leaving the scene of a motor vehicle accident, the class A misdemeanor of careless and imprudent driving, and the class A misdemeanor of driving without a valid license. Movant was charged as a prior and persistent offender. A jury trial was conducted on January 31, 2008, during which the State presented witness testimony from the victim, Pervy Strong (Victim), Corrine White (White), and Missouri State Patrol trooper Richard Pipkin (Trooper Pipkin). Movant did not testify and called no witnesses. Movant’s defense was mistaken identity, arguing that he was not the driver of the car that crashed. The following evidence was adduced at trial.

During the early morning hours of July 8, 2007, Movant was driving a red Ford Focus belonging to White, who is the mother of his baby, when he reached a curve in the road. Movant had been drinking alcohol and drove straight through the curve and into property belonging to Victim. After leaving the roadway, Movant’s vehicle struck a parked car in Victim’s driveway and then struck Victim’s home. Movant eventually stopped when his car hit a tree.

After hearing and feeling the impact of the crash from inside his home, Victim ran outside and saw the red Ford Focus in his yard. Movant was in the driver’s seat, attempting to start the engine. Victim went to the car’s passenger window and confronted Movant. Movant stepped out of the vehicle and informed Victim that the car belonged to his “baby’s momma” and she had full coverage insurance. Movant also said he was drunk, that he did not have a valid driver’s license, and that he had just gotten out of jail and did not want to go back.

Shortly after the crash, Victim’s oldest daughter called the police. The dispatch operator asked to speak with Victim, and Victim went inside to talk to the police on the phone. During that time, Movant unloaded several bags from the wrecked Focus to the ground. Then, Victim saw a second vehicle drive up next to Movant’s vehicle. Movant and the second vehicle’s driver loaded Victim’s bags into the second vehicle, a dark-colored sedan. Without notice, Movant and the driver entered the second vehicle and drove off.

A few minutes later, Trooper Pipkin arrived at the scene. Trooper Pipkin ran the license plate number on the Focus and found that it was registered to White. Trooper Pipkin contacted White, who confirmed that she loaned Movant her car that night. Trooper Pipkin showed Victim a photograph of Movant and Victim identified Movant as the driver who drove through his yard and into his house.

At the end of trial, the jury found Mov-ant guilty of all three counts. Movant was sentenced by the judge as a prior and persistent offender to seven years of imprisonment for leaving the scene of an accident and one year in jail for each of the two misdemeanor convictions, to run concurrently with each other and the felony sentence.

Movant appealed his convictions and sentence, which this Court affirmed in State v. Wren, 276 S.W.3d 880 (Mo.App. E.D.2009).

Movant’s Postr-Conviction Relief Motion

On February 25, 2009, Movant filed his pro se motion for post-conviction relief pursuant to Rule 29.15. Post-conviction counsel was appointed on March 19, 2009, and subsequently filed an amended motion for post-conviction relief, raising two claims of ineffective assistance of his trial counsel. First, Movant claimed that Trial Counsel did not exercise the customary skill and diligence that a reasonably competent attorney would have exercised under similar circumstances when Trial Counsel failed to call Movant’s wife, Charlotte Wren (Wife) to testify at trial about Movant’s alibi defense. Movant alleged that Wife would have testified that Movant could not have been the driver of the Ford Focus that crashed into Victim’s yard and house because Movant was with her at an apartment building at the time of the wreck. Additionally, Movant alleged that his Trial Counsel was ineffective for failing to impeach White with a letter she had written to Movant before trial stating: “Sh*t, can’t yo [sic] girl just say you were with her it is the truth. Like I said if you need me I’ll do it since I never gave you the car in the first place.” Movant alleged that the statement in the letter conflicted with White’s trial testimony that she loaned Movant her car on the night of the crash.

The motion court held an evidentiary hearing on Movant’s post-conviction relief motion on July 17, 2009. At the hearing, Wife testified that she had been with Mov-ant several hours before the crash, but she had dropped Movant off at his friend’s house an hour or two before the offenses occurred. Wife said she had informed Trial Counsel that she was with Movant before the accident, but was not completely sure when that even occurred. Wife said she was willing to testify at Movant’s trial because she “assumed that he did not do it,” but she admitted she was not with Movant at approximately 1:15 a.m. when the crash occurred. Wife said she still did not know “whether he did or did not do what he’s accused of doing.”

Movant’s Trial Counsel also testified during the evidentiary hearing and explained that she did not call Wife as a witness at trial because she did not believe Wife offered a strong alibi for Movant. Trial Counsel testified that juries often are suspicious of a girlfriend or wife’s alibi testimony because they have “a very strong motivation to protect their loved one.” Trial Counsel believed the credibility of Wife’s potential testimony was further weakened by the fact that there was no specific event tied to her memory of the night in question, and that Wife would have to convince the jury that she remembered being home with Movant on a specific night despite having no real reason to remember that night in particular.

Trial Counsel also testified that she did not call Wife as a witness because Trial Counsel thought Wife’s appearance would hurt Movant more than it would help. Trial Counsel explained that Wife matched the description of the “getaway driver” who had arrived at Victim’s house after Movant crashed, helped load Movant’s bags into her car, and then drove away before the police arrived. The getaway driver was a “black female, larger build,” in a dark-colored sedan. Wife, too, is a heavy-set black female who drives a dark-colored sedan. Trial Counsel testified that she was afraid the jury would think that Wife was the getaway driver. Thus, Wife’s testimony would confirm Movant’s identity as the driver of the Focus rather than support the mistaken-identity defense. Therefore, Trial Counsel not only declined to call Wife as a witness, but also instructed Wife to avoid entering the courtroom during Movant’s trial.

Finally, Trial Counsel testified that Wife could have caused trouble as a witness because, at the time of the crash, Wife lived near Victim’s house. Trial Counsel worried that the jury might conclude that Wife easily could have acted as the getaway driver, given her close proximity to the crash scene. Trial Counsel testified that she “made a strategic decision concerning the strength of the alibi” when she decided not to call Wife as a witness.

Furthermore, Trial Counsel testified at the evidentiary hearing regarding her decision not to impeach White with the letter Movant claimed White had written after his arrest. The letter stated, “Sh*t, can’t yo [sic] girl just say you were with her it is the truth. Like I said if you need me I’ll do it since I never gave you the car in the first place.” Trial Counsel said that she thought the statement was suspicious and would not be believed by a jury. Trial Counsel thought the phrase, “If you need me I’ll do it” seemed to show that White had feelings for Movant and would lie to protect him. Trial Counsel thought that such evidence would undermine her theory that White was testifying falsely against Movant at trial because she was angry at Movant for philandering. Additionally, Trial Counsel believed that the phrase, “it is the truth” seemed like a transparent attempt by the writer to bolster the statement’s credibility, and Trial Counsel thought it would “strike a jury badly and not come off as being truthful at all.”

Trial Counsel also explained that she decided not to impeach White with the letter to prevent the State from responding with damaging rebuttal evidence. Trial Counsel explained that White had testified in a deposition that she had received threatening letters from Movant and was frightened of him. White testified in her deposition that Movant had written to her after he discovered that she was going to testify against him. Movant’s letter told White to “stick to the plan” and “say what [she] was going to say,” or that Movant did not have her car and someone else did. Trial Counsel was concerned that if she tried to impeach White, the State would explain the inconsistency with evidence that Movant had threatened White.

Trial Counsel also testified that if she presented White’s letter to the jury, it would force her to put on the alibi defense involving Wife. In the letter, White allegedly asked why Movant’s “girl” could not “just say [Movant was] with her.” Movant told Trial Counsel that the “girl” mentioned in the letter was Wife. Trial Counsel thought that jurors would wonder who the “girl” was if they saw the letter, forcing Trial Counsel to put Wife on the stand. Although Trial Counsel recognized that she could have impeached White with the letter, she made a strategic decision not to do so.

On August 26, 2009, the motion court issued its Judgment denying Movant’s Motion to Vacate, Set Aside or Correct Judgment pursuant to Rule 29.15 and made specific findings of fact and conclusions of law. The motion court found that Wife’s testimony would not have provided a viable alibi defense because she could not account for Movant at the time of the offenses. Wife’s testimony would have hurt, not helped Movant at trial, the motion court concluded, and therefore, Trial Counsel was not ineffective in failing to call her as a witness at Movant’s trial. Further, the motion court found that even if Wife’s testimony would have supported an alibi defense, Trial Counsel made a strategic decision not to call Wife as a witness for several reasons. Trial Counsel thought Wife’s testimony was a “weak” alibi at best, Wife lived close to the crime scene and would therefore place Movant close to the crime scene, and Wife fit the general description of the getaway driver.

Regarding Movant’s claim that his Trial Counsel was ineffective for failing to impeach White with her letter, the motion court ruled that Trial Counsel used sound trial strategy. The motion court found the letter’s statement was ambiguous and could be interpreted as an invitation to commit perjury on Movant’s behalf. Additionally, Trial Counsel thought that impeaching White with the letter would lead to testimony regarding threatening letters Movant sent to White. The motion court ruled that Movant failed to carry his burden to prove by a preponderance of the evidence that Trial Counsel was ineffective in representing Movant.

Movant filed his notice of appeal to this Court on October 5, 2009. This appeal follows.

Points on Appeal

Movant raises two points on appeal arguing the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief. In his first point, Mov-ant alleges that the motion court clearly erred because Trial Counsel was ineffective for failing to call Wife as a witness. Movant claims that reasonably competent counsel under the same or similar circumstances would have called Wife to introduce Movant’s alibi defense and buttress Movant’s mistaken-identity defense, and no reasonable trial strategy justified trial counsel’s failure to call Wife as a witness.

In his second point, Movant argues that the motion court clearly erred in denying his Rule 29.15 motion because Trial Counsel was ineffective for failing to impeach the State’s key witness, White, with a letter she wrote to Movant before trial. Movant alleges that a reasonably competent attorney under the same or similar circumstances would have impeached White’s credibility with her statements in the letter, and no reasonable trial strategy justified Trial Counsel’s failure to impeach White’s testimony.

In both points, Movant alleges that but for Trial Counsel’s ineffectiveness, there is a reasonable probability that the outcome of Movant’s trial would have been acquittal. Movant further alleges that the motion court’s ruling and Trial Counsel’s ineffectiveness denied Movant his rights to due process of law, to effective assistance of counsel, to present a defense, and to a fair trial, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. Movant requests that this Court reverse the motion court’s judgment and remand for a new trial.

Standard of Review

We review a denial of post-conviction relief to determine whether the motion court’s findings and conclusions are clearly erroneous. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009). Findings and conclusions are clearly erroneous if, upon review of the entire record, we are left with the definite and firm impression that a mistake has been made. Gehrke v. State, 280 S.W.3d 54, 56-57 (Mo. banc 2009).

Discussion

To prevail on a claim of ineffective assistance of counsel, a movant must show that his counsel did not demonstrate the customary skill and diligence that a reasonably competent attorney would display when rendering similar services under the existing circumstances, and the movant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove prejudice, a movant must show a reasonable probability that, but for counsel’s errors, the result of the trial would have been different. Id. at 694, 104 S.Ct. 2052. Trial counsel is presumed effective, and a movant bears the burden of proving otherwise. Forrest, 290 S.W.3d at 708.

Although a movant must overcome a strong presumption that counsel provided effective assistance, counsel must make a reasonable decision not to conduct a particular investigation. State v. Butler, 951 S.W.2d 600, 608 (Mo. banc 1997). “[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgment supports the limitation on investigation.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. “Reasonable choices of trial strategy, no matter how ill fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance.” Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001).

Point I — Failure to Call Wife as a Witness

Movant’s first point claims Trial Counsel was ineffective for failing to call Wife as a witness at trial to provide Mov-ant’s alibi defense and buttress Movant’s mistaken-identity defense.

To prevail on a claim for ineffective assistance of counsel for failure to call a witness, a movant must show: 1) trial counsel knew or should have known of the existence of the witness; 2) the witness could be located through reasonable investigation; 3) the witness would testify; and 4) the witness’s testimony would have produced a viable defense. Williams v. State, 168 S.W.3d 433, 441 (Mo. banc 2005). “The selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim.” Edwards v. State, 200 S.W.3d 500, 518 (Mo. banc 2006).

Movant argues that Wife would have presented “relevant, potentially exculpatory, and corroborative evidence that was not otherwise presented at trial.” However, Movant admits that Wife “could not provide [him] with a complete alibi.” Instead, Movant argues that Wife’s testimony “could only have helped, and not hurt, [his] chances of an acquittal at trial” because it was corroborative of his mistaken-identity defense. Movant argues that Wife would have testified that she was with Movant immediately prior to the time of the offense and that he was not in White’s car. Movant claims that Wife’s testimony “would have created reasonable doubt about [Movant’s] guilt by making it much less likely that [Movant] was driving [White’s] red Ford Focus only minutes to an hour later.” We disagree.

We agree with the motion court that Trial Counsel made a reasonable strategic decision not to call Wife as a witness for several sound reasons. Even if, in hindsight, Trial Counsel’s reasons proved unsuccessful because she did not receive a “not guilty” verdict, we will not deem her ineffective. See Clayton, 63 S.W.3d at 206. However, here Trial Counsel’s strategy explained during the evidentiary hearing was deliberate and logical. Trial Counsel methodically considered the option of calling Wife as a witness and decided against it as a matter of trial strategy.

First, even if Wife had testified that she was with Movant immediately pri- or to the time he allegedly committed the offenses, Wife could not provide an alibi because she could not testify that she was with Movant during the time the offenses took place. Wife also admitted that she did not know whether Movant had committed the offenses. An alibi is “a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for defendant to be the guilty party.” Williams v. State, 8 S.W.3d 217, 220 (Mo.App. E.D.1999) (internal citations omitted). We will not find Trial Counsel ineffective for failing to call a witness whom Trial Counsel believed would not unequivocally support Movant’s defense. See Childress v. State, 248 S.W.3d 653, 655 (Mo.App. S.D.2008) (counsel not deemed ineffective for failing to call a witness who did not establish an alibi, or corroborate or strengthen appellant’s testimony because “she could not account for enough time to make any difference.”). Wife did not unequivocally support Mov-ant’s defense and her testimony would not have provided an alibi for Movant.

Further, Wife’s testimony would have hindered Movant’s defense for other reasons. Wife’s testimony would have placed Movant in close proximity to the crime scene, and her appearance matched the general description of Movant’s getaway driver. If a potential witness’s testimony could place a defendant within close proximity to a crime scene, defense counsel reasonably may decide not to call that witness. See State v. Dixon, 969 S.W.2d 252, 257 (Mo.App. W.D.1998) (counsel used trial strategy and was not ineffective for failing to call witness whose testimony would have placed defendant near crime scenes hours before crimes were committed and had doubts about defendant’s proposed alibi testimony). Trial Counsel considered these reasons and, as a matter of trial strategy, decided not to call Wife as a witness so that jurors did not “draw a parallel between [Movant] and [Wife]” to hinder Movant’s defense of mistaken identity.

After considering the facts presented in the evidentiary hearing, we find that Trial Counsel’s complete investigation into Wife’s testimony and methodical decision not to call Wife as a witness was a matter of reasonable trial strategy. The record does not support Movant’s claim that Trial Counsel was ineffective for her decision against calling Wife as a witness. Point I is denied.

Point 2 — Failure to Impeach White

In his second point, Movant alleges that the motion court clearly erred in denying his Rule 29.15 motion because Trial Counsel was ineffective for failing to impeach the State’s key witness, White, with a letter she wrote to Movant before trial. Movant argues that White’s statement in the letter constitutes a prior inconsistent statement from her trial testimony that she loaned Movant her car on July 7, 2007. Movant argues that the statements in White’s letter were not ambiguous and there was no question that jurors would have concluded that Movant had been with someone else at the time of the charged offenses. Movant urges this Court to find error in the motion court’s ruling because impeachment of White’s testimony “was paramount.” We disagree.

Failure to impeach a witness does not generally warrant relief for ineffective assistance of counsel where the facts, even if true, do not establish a defense. State v. Day, 859 S.W.2d 194, 196 (Mo.App. E.D.1993). The decision to impeach is presumed to be a matter of trial strategy, and to overcome such presumption, a movant must demonstrate that the decision was not a matter of trial strategy and that the impeachment would have provided him with a defense or would have changed the outcome of the trial. State v. Gollaher, 905 S.W.2d 542, 548 (Mo.App. E.D.1995). It is a reasonable strategic choice to decline to impeach a witness with certain evidence if it will prevent other, adverse evidence from being admitted. See Storey v. State, 175 S.W.3d 116,127-28 (Mo. banc 2005) (counsel not ineffective for declining to impeach sheriff with deposition where deposition might open door to evidence of defendant’s prior offenses).

After reviewing the record, we find that Trial Counsel reasonably believed that introducing the letter to impeach White’s testimony would hinder, not help Movant’s defense. Trial Counsel testified at the evidentiary hearing that she thought the letter’s statements suggested an invitation to provide false testimony to protect Mov-ant, and that the letter would undermine the defense theory that White was lying at trial because she was angry at Movant for philandering. Trial Counsel testified that the phrase, “it is the truth” seemed like a transparent attempt to bolster the statement’s credibility, and Trial Counsel thought it would “strike a jury badly and not come off as being truthful at all.”

Further, Trial Counsel explained during the evidentiary hearing that she decided not to impeach White with the letter to prevent the State from responding with damaging rebuttal evidence, including Movant’s threats against White. Trial Counsel also believed that if she presented White’s letter to the jury, it would force her to put on the alibi defense involving Wife. Although Trial Counsel recognized that she could have impeached White with the letter, she made a strategic decision not to do so.

This Court finds that Trial Counsel’s decision not to impeach White was made with sound judgment based on Trial Counsel’s reasonable trial strategy. We find that the letter, poorly written, was indeed ambiguous and could have opened the door to much more unfavorable evidence against Movant. Movant here has not overcome the presumption that Trial Counsel’s decision not to impeach White’s testimony with the letter was a matter of trial strategy. We find no reasonable probability that White’s impeachment testimony would have changed the outcome of trial. Movant’s second point is denied.

Conclusion

The motion court’s judgment is affirmed.

GEORGE W. DRAPER III, J. and GARY M. GAERTNER, JR., J., Concur.

      . All subsequent statutory references are to RSMo 2000, unless otherwise indicated.


author: SHERRI B. SULLIVAN, P.J.

text:
    William R. WEBER, John C. Hannegan, and HMW Leasing Company, a Missouri General Partnership, Plaintiffs/Respondents, v. Jane R. MOERSCHEL, Personal Representative of the Estate of Rollin J. Moerschel, Deceased, Defendant/Appellant.
    No. ED 93652.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 15, 2010.

      Daniel K. Barklage, St. Charles, MO, for Plaintiffs/Respondents.
    Scott Simpson, Jayson B. Lenox, John C. Maxwell, St. Charles, MO, for Defendant/Appellant.
   SHERRI B. SULLIVAN, P.J.

Introduction

Jane Moerschel, Personal Representative of the Estate of Rollin J. Moerschel, Deceased (Appellant), appeals from the trial court’s judgment on the Amended Claim Relating to the Estate of Rollin J. Moer-schel, Deceased, Against the Personal Representative Jane R. Moerschel filed by William R. Weber (Weber), John C. Han-negan (Hannegan) and HMW Leasing Company, a Missouri General Partnership (HMW or the partnership) (collectively Respondents), requesting a declaration of rights and accounting concerning the partnership interest of Rollin J. Moerschel (Moerschel) as agreed to by the parties in the Restated Partnership Agreement (partnership agreement) dated June 1, 1987; and on Appellant’s Verified Petition for Discovery of Assets (Petition) and Motion for Authority to Continue Business (Motion). We reverse and remand.

Factual and Procedural Background

At the time of Moerschel’s death on June 12, 2007, Moerschel, Weber and Han-negan were partners in HMW. Moerschel owned 20% of the partnership; Hannegan, 60%; and Weber, 20%. The single asset of the partnership is a 3-story office building, built in 1891 and renovated in the early 1980s, used for the law offices of the law practice of Weber, Hannegan, and about eleven other lawyers and fifteen support staff. On February 6, 2008, Appellant filed the Motion and Petition, seeking a declaration of rights, interests and entitlements between the parties based on the partnership agreement. On April 18, 2008, Respondents filed their “Claim Relating to the Estate of Rollin J. Moerschel, Deceased, Against the Personal Representative Jane R. Moerschel — Breach of Contract — Specific Performance — Damages” (Claim). On April 30, 2008, Respondents filed an amended claim (Amended Claim) adding a third count seeking a declaratory-judgment and asking for a determination of their rights and liabilities under the partnership agreement.

After a hearing on the merits the trial court entered a Judgment requiring the Respondents to buy out Moerschel’s 20% partnership interest. Respondents hired Real Estate Analysts Limited to prepare an appraisal of the real estate, and Appellant consented to that appraisal. Commercial Real Estate Appraiser Michael Green (Green) performed the appraisal of the partnership property, the appraised value of which was $1,225,000. This appraisal was as of the date of Moerschel’s death, as required by the partnership agreement. Green testified in detail about how he went about performing the appraisal. Appellant’s 20% share of the appraised value of the property is $245,000.

After Green’s testimony, Weber testified, over Appellant’s continued objections, about the updates and repairs he would like to make to the property, and how much such updates and repairs would cost. The court accepted Weber’s testimony and deducted $225,000 from the appraised value of the property, thereby reducing Appellant’s share to $200,000.

The trial court ordered Respondents to make three equal payments to Appellant of one-third (1/3) of the total judgment amount; the first within six months of the judgment, the second within one year of the judgment, and the third within two years of the judgment. The trial court also ordered that there shall be no interest ón the first payment, but that interest on the second and third payments shall begin accruing three months after the date of judgment, at 7% per annum. These orders were made in accordance with the terms of the partnership agreement’s buyout clause, with the exception that the clause states that payments will be made, as outlined above, from the date of retirement (death), as opposed to from the date of judgment. The trial court denied Appellant’s Motion, finding that there was no authority set forth in the partnership agreement for a deceased partner’s estate’s personal representative to assume the deceased’s partnership status.

This appeal follows.

Points on Appeal

In her first point, Appellant maintains that the trial court erred in deducting the $225,000 cost of updates and repairs to the building from the real estate appraisal of $1,225,000 because the partnership agreement was misinterpreted and the parties’ intentions were not followed, in that the partnership agreement does not provide for a reduction in the appraised value for building repairs.

In her second point, Appellant claims that the trial court erred in the timing of the buyout payments and the interest thereon because the express language of the partnership agreement is controlling, in that the partnership agreement sets forth a clear and unambiguous payment and interest schedule that uses Moer-schel’s date of death to determine when the buyout payments are due and when interest begins to accrue.

Standard of Review

The standard by which this Court reviews a declaratory judgment action is the same as in any other court-tried case. Scott v. Ranch Roy-L, Inc., 242 S.W.Sd 401, 405 (Mo.App. E.D.2007). The standard of review in an appeal from a court-tried case is governed by Murphy v. Carron. G.H.H. Investments, L.L.C. v. Chesterfield Management Associates, L.P., 262 S.W.3d 687, 691 (Mo.App. E.D.2008). The judgment will be affirmed unless it is against the weight of the evidence, there is insufficient evidence to support it, or it erroneously declares or applies the law. Id. We defer to the factual findings of the trial court, which is in a superior position to assess credibility. Id. However, this Court independently evaluates the trial court’s conclusions of law. Id. Contract interpretation is an issue of law, which we review de novo on appeal. Id.

Discussion — Point I

Appellant maintains that there is no provision in the contract providing for a reduction in the appraised value of the property for building repairs. We agree.

Article Nineteen of the partnership agreement provides: “A partner may retire from the Partnership upon the following terms: A. If a Partner dies or becomes disabled from engaging regularly in the practice of law....”

Article Twenty provides:

A. The value of a retiring Partner’s interest in the Partnership property, adjusted to reflect appraised values as provided in this Article, shall be the sum of his capital account and his proportionate share of accrued net income of the Partnership to the date of his retirement, unless included in his drawing account.
B. All Partnership assets shall be valued at book value except the appraised value of real property and improvements thereon, if any, shall be substituted for book value. The difference between the total appraised value of real property and improvements thereon, if any, and its total depreciated book value shall increase or decrease the Partners’ capital accounts in the proportions of their interests in profits or losses of the partnership specified in Article Eight. The appraised value shall be determined as of the date of retirement of the retiring Partner and shall be made by an appraiser selected by agreement between the continuing Partners and the retiring Partner. If they cannot agree on an appraiser, the appraisal shall be made in accordance with the rules of the American Arbitration Association then in effect ...

[Emphasis added.]

“ ‘The cardinal rule in the interpretation of a contract is to ascertain the intention of the parties and to give effect to that intention.’ ” G.H.H. Investments, 262 S.W.3d at 692, quoting J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973). Here, the partnership agreement is clear in its language on how the value of the partnership’s real estate asset is to be ascertained, when the time comes to buy out a partner’s share upon his death or retirement: “The appraised value shall be determined as of the date of retirement of the retiring partner and shall be made by an appraiser selected by agreement between the continuing partners and the retiring partner.” [Emphasis added.]

The use of the word “shall” is compulsory. The use of the appraiser’s value in determining Appellant’s buyout percentage is mandatory. There is no language in the agreement stating that the appraised value may be reduced by a partner’s opinion testimony regarding deductions for repairs and updates. No such intent may be read into the contract, either, because the agreement designates itself a fully integrated agreement. Article Sixteen explicitly provides:

This partnership Agreement contains the entire understanding between the partners and supersedes any prior written or oral agreement between them respecting the within subject matter. There are no representations, agreements, arrangements, or understandings, oral or written, between and among the Partners hereto relating to the subject matter of this Partnership Agreement which are not fully expressed herein.

[Emphasis added.]

The fact that the several paragraphs discussing appraised value do not include any language regarding deductions for speculative future improvements suggests that “appraised value” means simply the plain and ordinary meaning of “appraised value,” i.e., the value assigned to the property by a professional real estate appraiser. An “appraiser” is an “impartial person who estimates the value of something, such as real estate, jewelry, or rare books.” Black’s Law Dictionary 97 (7th ed.1999). Green, who was hired by Respondents, incidentally, submitted a fifty-page comprehensive appraisal of the property at issue. Respondents did not contest that appraisal. Rather, Green testified and submitted his appraisal into evidence, without objection by Respondents. Weber then testified about his opinion of the property’s fair market value, opining that updates and repairs needed to be made to the property, and that $40 per square foot of the 9,700 square foot property should be deducted from the appraisal, to reach fair market value, in the event Respondents would sell the property in the future. The trial court accepted this testimony and found that the purported fair market value of the property was $1,000,000, after deducting $225,000 from the appraiser’s value.

This was error on the part of the trial court, because the partnership agreement specifically dictates that the appraiser shall set the value. The contract says nothing about “fair market value,” which is the “price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm’s length transaction; the point at which supply and demand intersect.” Id. at 1549. However, the trial court found that “[b]ased on the testimony adduced the Court would deduct the sum of $225,000 from the appraisal for a net fair market value on the date of Rollin J. Moerschel’s death of $1,000,000.” This finding is contrary to the terms of the contract.

We note that if Respondents wanted Green to take into account repairs and updates that needed to be made to the property in an effort to cause him to lower his appraisal of the property’s value, then they should have done so, or rejected Green’s appraisal and sought another appraiser, or at the least objected at trial to Green’s conclusions before they were submitted into evidence and Green testified as to his appraisal. But they did none of these things.

Respondents argue that the trial court’s $225,000 deduction from Green’s valuation was “within the range established by the evidence.” The “evidence” of which Respondents speak is Weber’s testimony about the cost of repairs and updates Weber believes should be deducted from Green’s appraisal in order to reach fair market value. This argument presupposes that a partner is allowed to testify and give his conclusion as to the value of the property. The contract does not provide for such, and in fact its mandatory language that the parties shall agree to an appraiser who shall give his appraised value prohibits any evidence as to the value of the property other than the appraiser’s.

Respondents also assert that the trier of fact is not required to adopt the exact testimony of any witness when assessing damages or determining value. On the contrary, the trier of fact cannot alter the specific contractual appraisal method sanctioned by the clear terms of the integrated partnership agreement. Contrary to Respondents’ argument, the trial court is bound by the appraiser’s valuation when the parties are constrained by the terms of a binding, valid contract setting forth that the appraiser decides the value of the property. “Where a contract speaks plainly and unequivocally, the language used must be enforced as written.” Kramer v. Fallert, 628 S.W.2d 671, 674 (Mo.App. E.D.1981). The parties to this partnership agreement are lawyers, and they drafted this agreement themselves to govern themselves and their partnership, specifically designating an independent third party professional appraiser to determine the value of the property, presumably to avoid conflicting opinions as to the value of the property between the retiring partner and the continuing partners.

Green’s comprehensive appraisal specifies that the appraisal value of the property, $1,225,000, was determined as of the date of Moerschel’s retirement or death, i.e., June 12, 2007, which the partnership agreement specifically requires. Pursuant to the terms of the agreement, we find said appraisal value stands. The trial court exceeded the terms of the contract when it deducted the cost of updates and repairs from the appraised value of the building.

For the foregoing reasons, Point I is granted.

Discussion — Point II

Appellant maintains that since the partnership agreement provides that the amounts due to her were to be payable six months, one year, and two years, respectively, from the date of Moerschel’s death, and not from the date of judgment, as the trial court held, that she should receive interest on the money from those dates. We disagree.

Generally, prejudgment interest on unliquidated claims is not recoverable, for the reason that where the person liable does not know the amount he owes, he should not be considered in default because of failure to pay. Watters v. Travel Guard Intern., 186 S.W.3d 100, 111 (Mo.App. E.D.2004). In order to be liquidated so as to allow interest, a claim must be fixed and determined or readily determinable, but it is sufficient if the amount due is ascertainable by computation or by a recognized standard. Id.

In the instant case, the amount owed Appellant was not capable of ascertainment until the value of the real property was appraised and settled. Further, the amount was not liquidated until the trial court determined the amount in its judgment. Therefore, Appellant is not due prejudgment interest prior to the court’s judgment. For the same reason, the amount owed Appellant was not capable of payment until it was ascertained. Therefore, Appellant was not able to be paid the respective amounts six months, one year, and two years, respectively, from the date of Moerschel’s death, as set forth in the agreement. It was only possible to pay Appellant from the date of judgment. Once the value of the property was determined by the court, the court honored the intent of the parties by having the amount distributed in the three-installment manner provided in the partnership agreement, from the date of its judgment.

For the foregoing reasons, Point II is denied.

Conclusion

Appellant is entitled to $233,000, which is twenty percent (20%) of Green’s $1,225,000 appraisal of the property, minus the $12,000 pre-payment. The judgment of the trial court is reversed and remanded for entry of judgment consistent with this opinion.

ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J., concur.

      . Hannegan and Weber were entitled to a credit of $12,000 already paid to leave a bal-anee of $188,000.

      . 536 S.W.2d 30, 32 (Mo.banc 1976).