author: KELLER, Judge. COMBS, Judge,

text:
    Latisha BURCHETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-CA-000324-MR.
    Court of Appeals of Kentucky.
    June 4, 2010.

      Karen Shuff Maurer, Assistant Public Advocate, Frankfort, KY, for Appellant.
    Jack Conway, Attorney General, Micah Brandon Roberts, Assistant Attorney General, Frankfort, KY, for Appellee.
    Before VANMETER, Acting Chief Judge; COMBS and KELLER, Judges.
   OPINION

KELLER, Judge.

A jury convicted Latisha Burchett (Bur-chett) of fleeing or evading the police, first degree; wanton endangerment, first degree; and operating a motor vehicle under the influence (DUI). The jury recommended a total sentence of ten years and the trial court entered a judgment and sentence consistent with the jury’s decision and recommendation. Burchett appeals that judgment arguing that the trial court erred when it permitted “investigative hearsay” to be introduced into evidence. For the following reasons, we affirm.

FACTS

On November 22, 2006, Adair County Deputy Sheriff Nathan Bradshaw (Dep. Bradshaw) was “serving papers” at a residence on Route 55 in Adair County. While doing so, Dep. Bradshaw received a number of complaints about a car driving recklessly. Dep. Bradshaw left the residence to see if he could find the reported car. While at a traffic light, Dep. Bradshaw saw Burchett coming toward him. Other cars were “getting out of the way.” Dep. Bradshaw then turned on his lights and siren in an attempt to stop Burchett. Instead of stopping, Burchett drove away at a high rate of speed. Dep. Bradshaw called for backup and began to chase Bur-chett, at times reaching speeds in excess of 100 miles per hour. Just past the Adair County line, Burchett spun around in front of Dep. Bradshaw. Burchett then began driving toward Dep. Bradshaw, who turned around and continued his pursuit of Burchett.

Sheriffs Deputies Burton and Greer responded to Dep. Bradshaw’s call for assistance. Both testified that, as they responded to Dep. Bradshaw’s request, they met Burchett’s car coming toward them at a high rate of speed. Dep. Burton testified that he met Burchett in a “sharp turn” in the road. Burchett was coming toward him and her car was partially in Dep. Burton’s lane. According to Dep. Burton, Burchett apparently lost control of her car and veered off the road, hitting several trees.

When Dep. Burton approached Bur-chett’s car, she was lying on the floor and talking incoherently. Emergency personnel transported Burchett to the hospital. Hospital personnel took a blood sample from Burchett, which tested positive for cocaine.

The objeeted-to testimony occurred early in the Commonwealth’s case in chief. As noted above, Dep. Bradshaw, the Commonwealth’s first witness, testified that he “kept getting reckless driving complaints on a gray car.” Burchett objected, arguing that this testimony was hearsay. The Commonwealth stated that it was offering the testimony to explain Dep. Bradshaw’s actions. The court agreed with the Commonwealth and overruled Burchett’s objection. Burchett appeals the court’s ruling admitting Dep. Bradshaw’s testimony.

STANDARD OF REVIEW

The standard of review on evi-dentiary issues is abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky.2007). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000). With this standard in mind, we address the issue raised by Burchett on appeal.

ANALYSIS

Burchett argues that the trial court erred when it permitted Dep. Bradshaw to testify that he had received complaints about a car driving recklessly. According to Burchett, that testimony by Dep. Bradshaw amounted to impermissible “investigative hearsay.” The Commonwealth argues that the testimony was admissible under the “verbal act doctrine,” and, if not admissible, any error was harmless.

We begin our analysis by examining Kentucky Rule of Evidence (KRE) 801(c), which defines hearsay as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Generally, pursuant to KRE 802, hearsay is not admissible unless it falls within one of the exceptions in KRE 803-806. There is no exception for investigative hearsay. As the Supreme Court of Kentucky noted in Sanborn v. Commonwealth, 754 S.W.2d 534, 541 (Ky.1988), investigative hearsay is

a misnomer, an oxymoron. The rule is that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer as a result of this information and the taking of that action is an issue in the case. Such information is then admissible, not to prove the facts told to the police officer, but only to prove why the police officer then acted as he did. It is admissible only if there is an issue about the police officer’s action.

(Emphasis in original).

Thus, the analysis is one of relevance. The statements are only admissible if relevant, and they are only relevant if used to explain why the officer acted as he or she did and the officer’s actions are at issue. If the officer’s actions are not at issue, the motivation for those actions is not relevant and the statements are not admissible. See Brewer v. Commonwealth, 206 S.W.3d 343, 351-52 (Ky.2006).

From our review of the record, it does not appear that Dep. Bradshaw’s actions were at issue. Burchett did not challenge Dep. Bradshaw’s decision to attempt to stop her nor did she attempt to exclude Dep. Bradshaw’s testimony regarding the chase that ensued. Therefore, any explanation for Dep. Bradshaw’s actions was not relevant, and the trial court should have excluded his testimony regarding the reckless driving complaints.

However, that does not put an end to our analysis. We must determine if that error caused sufficient harm to warrant reversal and a new trial. We hold that it does not. Kentucky Rule of Criminal Procedure (RCr) 9.24 provides that

[n]o error in either the admission or the exclusion of evidence ... is ground for ... disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.

The test for harmless error is “whether on the whole case there is a substantial possibility that the result would have been any different.” Commonwealth v. McIntosh, 646 S.W.2d 43, 45 (Ky.1983). The relevant inquiry is whether there is a reasonable probability that the evidence complained of might have contributed to the conviction. Jarvis v. Commonwealth, 960 S.W.2d 466, 471 (Ky.1998). “Under the harmless error doctrine, if upon consideration of the whole case it does not appear that there is a substantial possibility that the result would have been any different, the error will be held non-prejudicial.” Gosser v. Commonwealth, 31 S.W.3d 897, 903 (Ky.2000).

Applying the above standards, we hold that the error was harmless for three reasons. First, Dep. Bradshaw testified that he received complaints regarding an unidentified person driving a gray car recklessly. Those complaints did not identify Burchett or even identify with specificity the car involved. Therefore, it is likely that the jury took that testimony into consideration in reaching its verdict.

Second, the complaints related to actions Burchett took before she fled from Dep. Bradshaw. They were not related to the charges against Burchett of fleeing and evading, wanton endangerment, and DUI. Those charges arose from actions Burchett took after Dep. Bradshaw attempted to stop her and she fled. Again, it is not reasonable to conclude that the jury was influenced by Dep. Bradshaw’s testimony about the reckless driving complaint.

Third, testimony by Dep. Bradshaw, Dep. Greer, and Dep. Burton, about Bur-chett’s actions — -fleeing from officers who pursued her with their lights and sirens on; driving on a narrow road at speeds in excess of 100 miles per hour; and swerving across the middle of the road into oncoming traffic — was more than sufficient evidence to support the jury verdicts for fleeing and evading and wanton endangerment. Furthermore, the testimony from the state police lab technician that Bur-chett had traces of cocaine in her system was uncontroverted. In light of the evidence as a whole, “it does not appear that there is a substantial possibility the result would have been any different” if Dep. Bradshaw’s testimony had been excluded. Gosser, 31 S.W.3d at 903.

CONCLUSION

It was error for the trial court to admit into evidence testimony from Dep. Bradshaw regarding complaints he received about a person driving recklessly, because that evidence was not relevant. However, in light of the overwhelming evidence of Burchett’s guilt, the error was harmless. Therefore, we affirm.

VANMETER, Judge, concurs.

COMBS, Judge, concurs by separate opinion.

COMBS, Judge,

concurring.

I concur separately because I would hold that there was no error whatsoever in the so-called investigative hearsay. Deputy Bradshaw’s controversial statement was that he “kept getting reckless driving complaints on a gray car.” I agree with the Commonwealth that the statement was properly offered to explain Bradshaw’s action in initially undertaking the search for and pursuit of Burchett’s car. It meets the criteria for admissibility on the basis of relevance in explaining why Bradshaw acted as he did in his pursuit and chase of Burchett.

While the harmless error analysis of the opinion is thorough and correct, I would find no error at all.


source: Caselaw Access Project

author: NICKELL, Judge.

license: Public Domain

text:
    James W. STEADMAN, Appellant, v. Roger GENTRY; Barren County Fiscal Court; Leland Cox; and Sharon Buckley (Houchens) (Brown), Appellees.
    No. 2009-CA-000332-MR.
    Court of Appeals of Kentucky.
    June 4, 2010.

      James W. Steadman, Elizabethtown, KY, pro se.
    David W. Anderson, Bowling Green, KY, for appellee.
    Before ACREE, NICKELL, and THOMPSON, Judges.
   OPINION

NICKELL, Judge.

James W. Steadman, pro se, has appealed from the Barren Circuit Court’s January 30, 2009, order denying his motion to reconsider the January 21, 2009, order granting partial summary judgment in favor of Roger Gentry. After a careful consideration of the record, the briefs and the law, we affirm.

Steadman was arrested in Texas on an outstanding Barren County, Kentucky, arrest warrant and was extradited to Kentucky on May 31, 2005, where he was housed at the Barren County Detention Center. On July 24, 2006, Steadman filed his initial complaint against the Barren County Fiscal Court; Leland Cox, the Barren County Jailer; Sharon Buckley, a captain at the jail; the Louisville-Jefferson Urban County Government; and John Campbell, director of the Louisville-Jefferson Metro Department of Corrections. Campbell and Louisville-Jefferson Urban County Government were dismissed as parties in early 2007.

On March 21, 2007, Steadman moved the circuit court for leave to file an amended complaint alleging a new claim that he was assaulted on August 1, 2006, by Buckley and Gentry while he was incarcerated. Steadman tendered the amended complaint and a proposed order with his filing. The circuit court granted the motion on March 27, 2007. Because Steadman neither requested issuance of a summons, nor specified the desired method of service as required by CR 4.01(1), none were issued by the circuit court clerk.

Cox and Buckley answered Steadman’s amended complaint on April 25, 2007. Gentry had not been served with process so no answer was filed on his behalf. In July 2007, Steadman requested copies from the circuit court clerk of the summons served on Gentry and Buckley, but received no response. On March 7, 2008, Steadman reviewed the record in the matter and discovered no summons had been issued for service on Gentry. At his behest, the circuit court clerk issued the summons on March 18, 2008. Although Gentry was served with the summons on March 19, 2008, a miscommunication with his counsel occurred and no answer to the complaint was tendered. On November 21, 2008, Steadman moved for a default judgment against Gentry.

Upon receiving the motion for default judgment and learning Gentry had, in fact, been served, his counsel immediately tendered an answer to the complaint and a response to the motion for default judgment. Gentry also filed a motion for summary judgment alleging the statute of limitations had run on Steadman’s claims against him. At a status conference held on November 25, 2008, the circuit court denied the motion for default judgment and ordered the tendered answer to be filed. Following a hearing, on January 21, 2009, the circuit court entered a final and appealable order granting summary judgment in favor of Gentry. Steadman’s motion to reconsider was denied. This appeal followed.

The sole issue presented in this appeal is whether the circuit court correctly determined the statute of limitations period had expired on Steadman’s claims against Gentry and therefore granted Gentry a summary judgment. Pursuant to KRS 413.140, the statute of limitations for actions sounding in tort is one year. Actions not commenced within that time limit are forever barred. As the allegations giving rise to the instant claim occurred on August 1, 2006, our determination hinges on whether Steadman commenced his action against Gentry prior to August 1, 2007. We hold he did not, and affirm the circuit court’s grant of summary judgment.

Commencement of an action requires the filing of a complaint and the good faith issuance of a summons or warning order based on the allegations contained in the complaint. CR 3.01. “[T]he statute of limitations runs until a summons is actually issued.” Simpson v. Antrobus, 260 Ky. 641, 86 S.W.2d 544, 546 (1935). See also Delong v. Delong, 335 S.W.2d 895 (Ky.1960); Louisville & N.R. Co. v. Little, 264 Ky. 579, 95 S.W.2d 253 (1936). KRS 413.250 states “[a]n action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action.”

In the case sub judice, using the guidance set forth above, Steadman commenced his action against Gentry on March 18, 2008, the date a summons was issued by the Barren Circuit Court. Clearly, this is outside the one-year time limitation established by KRS 413.140 as was correctly found by the circuit court in granting Gentry’s motion for summary judgment.

Nevertheless, though he did not request any additional summons to be issued, Steadman contends he should not be punished for what he perceives to be the error of the circuit court clerk in failing to issue the summons for Gentry upon receipt of his amended complaint. In support of his contention, Steadman argues the recent decision of the Supreme Court of Kentucky in Nanny v. Smith, 260 S.W.3d 815 (Ky.2008), is controlling and mandates reversal of the circuit court’s judgment. However, Steadman’s reliance on Nanny is misplaced. In Nanny, the plaintiff delivered her complaint to the circuit clerk on a Friday. The statute of limitations on the claims in her complaint were set to expire on the following day, a Saturday, so she actually had until Monday to commence her action. The clerk failed to issue a summons until Tuesday, the day after the statute had run. The Supreme Court held the clerk’s error in failing to issue the summons forthwith when the complaint was filed violated CR 4.01(1) and therefore the statute was equitably tolled.

Here, Steadman filed his amended complaint quite some time prior to the expiration of the limitation period. Because this was not an original action, no summons could be issued until the circuit court entered an order allowing the filing of the amended pleading. Such order was entered on March 27, 2007. As the limitations period did not expire until August 1, 2007, Steadman had nearly four months to ensure the summons had been issued before being barred by the statute of limitations. Despite this extended amount of time to ensure process was issued, he did not instruct the circuit court clerk regarding the issuance of any additional summonses until March of 2008, some seven months after the limitations period had expired and nearly one year after the filing of the amended complaint. Steadman’s lack of diligence is fatal to his claim and his reliance on Nanny is misplaced, as the Supreme Court based its decision on Nanny’s due diligence.

Further, Nanny is factually distinguishable from the case at bar. Nanny involved the filing of an original complaint, to which the mandates of CR 4.01(1) apply and require a clerk to issue a summons “forthwith” when a complaint is filed. In contrast, this case involves the filing of an amended complaint, to which no similar provision is found in the civil rules. Thus, the holding in Nanny is inapposite to the case at bar, and the circuit court’s rejection of Steadman’s argument based on Nanny, and its subsequent grant of summary judgment, was not in error.

Therefore, for the foregoing reasons, the judgment of the Barren Circuit Court is affirmed.

ALL CONCUR.

      . Although the notice of appeal filed in this action lists all of the parties in the action below as appellees, the issues presented pertain solely to Gentry and no argument is advanced as to any of the other parties. Therefore, no further comment regarding those appellees is warranted.

      . Steadman leveled nine claims in the complaint, the majority of which centered upon his belief that corrections staff had wrongfully confiscated his personal property and had conspired to restrict his access to the courts by denying him supplies and access to legal research materials.

      .The amended complaint contained a total of seven allegations not contained in the original filing. Steadman raised additional claims related to the alleged conspiracy to restrict his access to the courts along with the claim that he was assaulted. Only arguments related to the assault claim are addressed by the parties in this appeal. Thus, no further comment is necessary on the remaining claims.

      . Kentucky Rules of Civil Procedure.

      . Steadman alleges in the introduction to his brief that he is appealing from the “overruling of a default judgment motion and the granting of a summary judgment and overruling of Motion for Reconsideration....” However, no argument is made regarding the denial of his motion for default judgment and we note that the order entered by the circuit court on that motion is not a final and appeal-able order. Therefore, as this Court is without jurisdiction to pass on issues decided in non-final orders, Wilson v. Russell, 162 S.W.3d 911 (Ky.2005), no discussion will be had regarding the circuit court’s denial.

      .Kentucky Revised Statutes.


author: TAYLOR, Judge:

text:
    J.R.A., Appellant, v. G.D.A., Appellee.
    No. 2009-CA-001709-ME.
    Court of Appeals of Kentucky.
    June 11, 2010.
    David S. Stevenson, Louisville, KY, for appellant.
    Barbara A. Sullivan, Louisville, KY, for appellee.
    Before CLAYTON, TAYLOR, and THOMPSON, Judges.
   OPINION

TAYLOR, Judge:

J.R.A. brings this appeal from an August 19, 2009, Order of the Jefferson Circuit Court, Family Court Division, (family court) adjudicating him the legal father of D.A.S. We reverse and remand.

On September 21, 2002, appellee married her first husband, S.L.S. Three days later, appellee gave birth to a daughter, D.A.S. At that time, D.A.S. took the last name of S.L.S. Appellee and S.L.S. were divorced by decree of dissolution of marriage entered in the family court on July 29, 2003. The decree makes no reference to any children of the marriage.

Some three years later, on May 1, 2006, appellee married appellant. At the time of the parties’ marriage, appellee’s daughter, D.A.S., was three years old. On March 16, 2007, appellant and appellee executed and filed with the State Registrar of Vital Statistics a Declaration of Paternity pursuant to Kentucky Revised Statutes (KRS) 213.046. In so doing, both parties signed an affidavit stating that appellant was the natural or biological father of D.A.S. Pursuant to the declaration, D.A.S.’s last name was changed to that of appellant.

On April 18, 2009, appellant initiated the instant action by filing a Petition for Dissolution of Marriage in the family court. Thereafter, appellant filed a motion seeking “a hearing to Determine Petitioner’s Paternity Rights and Obligations.” Therein, appellant averred that he was not the biological father of D.A.S. Appellant further asserted that both he and appellee were aware that he was not the biological father when executing the Declaration of Paternity in March 2007. Appellant asserts that he and appellee only executed and filed the Declaration of Paternity to obtain insurance coverage for D.A.S. through his employer.

In response to appellant’s motion, appel-lee admitted that appellant was not D.A.S.’s biological father. However, ap-pellee claimed that appellant should be estopped from denying parentage and claimed that appellee “assumed a parental relationship with the child.” Appellee also maintained that appellant held himself out as D.A.S.’s father throughout the marriage and continued to act as D.A.S.’s father after the parties’ separated.

Following a hearing, the family court entered an order on August 19, 2009. Therein, the court concluded that appellant was equitably estopped from denying his paternity of D.A.S. and that appellant was D.A.S.’s “father and shall have all of the rights and responsibilities of a natural parent.” In so concluding, the court reasoned:

A child born during a marriage is presumed to be the child of the husband and wife. Ky.Rev.Stat. Ann. § 406.011. Therefore, Kentucky law would generally presume that [D.A.S.] is the child of [appellee] and her first husband. However, the presumption of paternity is one that may be rebutted. In this ease, the presumption of paternity was rebutted when the parties signed affidavits stating that [appellant] is [D.A.S.’s] father and changing her surname from [S.] to [A.] The only issue remaining is whether [appellant] can overcome the presumption that he created pursuant to KRS 406.021(4) when he and [appellee] signed affidavits swearing that he is [D.A.S.’s] father.
Since March 16, 2007[,] when [appellant] swore that he is [D.A.S.’s] father, he has held himself out to be her father. [Appellant] introduced himself to people as [D.A.S.’s] father and introduced her to people as his daughter. [D.A.S.] calls, [appellant] “daddy” and has never referred to anyone else as “daddy.” [Appellant] went to most of [D.A.S.’s] doctor’s appointments and went to her soccer practices and games. [Appellant] was involved in [D.A.S.’s] education. [Appellant] acknowledged that [D.A.S.] has depended on him emotionally and financially as a daughter depends on a father. [Appellant] further acknowledged that he was aware that he would be held financially responsible for [D.A.S.] when he signed the affidavit declaring his paternity. [Appellee] testified that she believes [D.A.S.] would be very upset if she lost her relationship with [appellant] and that [D.A.S.] does not remember a time when [appellant] was not in her life.
Kentucky case law has recognized that the doctrine of equitable estoppel may be applied to prevent a party who has held himself as a child’s father from later denying paternity and terminating the parent-child relationship. In the case of S.R.D[.] v. T.L.B., where the husband had represented to the child that he was her father despite knowledge that he might not be the father, the child was unaware that the husband may not be her father, the husband had acted with the intention that the child consider him to be her father, and the child relied on his conduct to her detriment, the Kentucky Court of Appeals found that the husband could not be relieved of his parental obligation. S.R.D. v. T.L.B., 174 S.W.3d 502, 509 (Ky.App.2005). It has been noted by the Kentucky Court of Appeals that the doctrine of paternity by estoppel was employed in the case of S.R.D. v. T.L.B. in order “to preserve the relationship (both emotional and financial) between the child and the only father she had ever known.” Boone v. Ballinger, 228 S.W.3d 1, 12 (Ky.App.2007).
In this case, [appellant] has, through his actions, represented to [D.A.S.] that he is her father. Despite the testimony by both parties that [D.A.S.] is aware that [appellant] is not her biological father, the Court finds that based on her young age; [D.A.S.] is unaware that biology would mean that [appellant] may one day terminate the father-daughter relationship. The Court further finds that despite [appellant’s testimony that he signed the affidavit declaring his paternity of [D.A.S.] only so that he could cover her on his health insurance, [appellant] acted with the intention of [D.A.S.] considering him as her father by signing said affidavit, allowing her to call him “daddy,” introducing himself as [D.A.S.’s] father and [D.A.S.] as his daughter, and by attending regular doctor visits as well as soccer practice and games. [D.A.S.] did rely on [appellants conduct to her determinant, which he acknowledged in his testimony when he stated that [D.A.S.] has relied on him both emotionally and financially.
[Appellant] is the only father that [D.A.S.] has ever known, and the Court will not allow [appellant] to deny the responsibility that he willingly and knowingly undertook by signing the affidavit of paternity simply because his relationship with [D.A.S.’s] mother ended. To allow [appellant] to deny this responsibility would pose potentially serious ramifications for [D.A.S.]....
... For the foregoing reasons, the Court finds that [appellant] created a presumption of paternity pursuant to KRS 406.021(4) when he signed the affidavit declaring that he is [D.A.S.’s] father. Based on the doctrine of paternity by estoppel set forth in S.R.D. v. T.L.B., the Court concludes that [appellant] cannot overcome the presumption that he is [D.A.S.’s] father and cannot deny his obligations toward her. [Appellant] is [D.A.S.’s] father and therefore has all of the rights and responsibilities that any natural parent has.

This appeal follows.

Appellant contends that the family court erred by concluding that he was equitably estopped from denying paternity of D.A.S. For the reasons hereinafter stated, we agree.

The doctrine of paternity by estoppel was recently recognized in this Commonwealth in the case of S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky.App.2005). Therein, S.D. was married to T.B. when T.B. gave birth to a child. During the marriage, T.B. “threatened and intimated” to S.D. that he was not the biological father of the child; nevertheless, S.D. conducted himself as the child’s father. S.R.D., 174 S.W.3d at 503. Thereafter, the parties divorced, and S.D. was granted joint custody of the child. Some six years later, the parties undertook a D.N.A. test, and it was revealed that S.D. was not the child’s biological father. S.D. then sought to discontinue his child support payments but also sought to continue visitation and his parental relationship with the child.

Applying the doctrine of paternity by estoppel, the Court held that S.D. was estopped from denying paternity and that S.D. was the child’s legal father:

The factors relevant to equitable es-toppel apply to this case. S.D. represented to [the child] that he was her father, even though he was aware this representation may be a biological fiction; [the child] was unaware of this fact; S.D. acted with the intention that [the child] would consider him as her father; and [the child] relied upon S.D.’s conduct to her detriment. Simply put, S.D. made a material misrepresentation to [the child], upon which [the child] relied, to [the child]’s detriment and prejudice.
We must disagree with that contention. The facts of this case ... indicate that S.D.’s conduct towards [the child]i.e., continuing his role as her father, even though he had knowledge he may not be-effectively foreclosed [the child] from obtaining support from her natural father. Had S.D. chosen to conduct a paternity test at the time he first learned in 1997 that paternity was questionable, our conclusion may have differed. In that situation, [the child] would have had the opportunity to learn the identity of her natural father and, perhaps, to form a bond with him. But, as it stands, because S.D. has continuously held himself out as [the child]’s father since the child’s birth, he has prevented [the child] from having a relationship, financial or otherwise, with her natural father....

Id. at 508-510 (footnote omitted). Even though S.D. was not the child’s natural or biological father, the Court recognized that he was, nonetheless, the child’s legal father. Id. at 508. To apply the doctrine of paternity by estoppel, the Court outlined the following factors that must be present:

(1) Conduct, including acts, language and silence, amounting to a representation or concealment of material facts; (2) the estopped party is aware of these facts; (8) these facts are unknown to the other party; (4) the estopped party must act with the intention or expectation his conduct will be acted upon; and (5) the other party in fact relied on this conduct to his detriment.

Id. at 506 (footnote omitted).

We think the facts of this case are clearly distinguishable from those in S.R.D. First, unlike the relations in S.R.D., D.A.S. was not born during the marriage so there existed no presumption of paternity under KRS 406.011. See Boone v. Ballinger, 228 S.W.3d 1 (Ky.App.2007). Second, unlike the child in S.R.D., it is undisputed that D.A.S. knew that appellant was not her biological or natural father. This is a most critical distinguishing factor. Under the doctrine of paternity by estoppel, the true facts as to paternity must be unknown to the child. S.R.D., 174 S.W.3d 502. Such ignorance is necessary in order for the child’s reliance to be reasonable. Id.

Additionally, S.R.D. should not be so broadly interpreted as holding that every male individual who acts as a father to a child will be considered that child’s legal father. More is required under S.R.D.; particularly, such acts must constitute a “material misrepresentation.” S.R.D., 174 S.W.3d at 508. While appellant may have acted as D.A.S.’s natural father, D.A.S., as well as appellant and appellee, knew that he was not; consequently, appellant made no material misrepresentation to D.A.S. For these reasons, the doctrine of paternity by estoppel is not applicable in this case.

This leads our review to a determination of what appellant’s legal status was with D.A.S. at the time of the marriage and whether that status was legally altered during the marriage. At best, at the time of the marriage, appellant’s status with the child was one of step-father. Shortly thereafter, appellant signed an affidavit of paternity pursuant to KRS 213.046. Under KRS 406.021, this created a rebuttable presumption of paternity. However, appellant has acknowledged that this sworn affidavit was false, which appellee has, likewise, acknowledged. Since both parties admitted that appellant was not D.A.S.’s biological father, the presumption of paternity was clearly rebutted.

Under the facts of this case, based upon our review of applicable law, the only method by which a step-parent may acquire the legal status of parent with a biological child of his spouse is through adoption as set forth in KRS 199.470, et seq. Adoption is a statutory right that requires strict compliance with the statutory proceedings to protect the rights of natural parents. R.M. v. R.B., 281 S.W.3d 293 (Ky.App.2009). Inherent in these procedures, which is most applicable here, is the termination of parental rights of the natural or biological father pursuant to KRS 199.502. In this case, none of these events occurred that were necessary for appellant to establish a legal relationship as the father of D.A.S.

Accordingly, we hold the circuit court erred by equitably estopping appellant from denying his paternity and by concluding that appellant was the legal father of D.A.S. Any remaining arguments of appellant are moot.

For the foregoing reasons, the Order of the Jefferson Circuit Court, Family Court Division, is reversed and remanded for proceedings consistent with this opinion.

ALL CONCUR.

      . The July 29, 2003, Decree of Dissolution of Marriage made no reference to any children being born of the marriage. The decree did incorporate a Property Settlement Agreement, but the record on appeal is devoid of a copy of said agreement. However, appellee testified that S.L.S. was not the biological father of D.A.S.

      . Although not relevant for purposes of this appeal, we have considerable doubt whether this statute is applicable, or was otherwise properly utilized to determine paternity by the family court.

      . The Court defined “legal father” as "[t]he man recognized by law as the male parent of a child.” S.R.D. v. T.L.B., 174 S.W.3d 502, 508 (Ky.App.2005)(quoting Black’s Law Dictionary (8th ed. 2004)).


author: KURT S. ODENWALD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Thurman SHELTON, Appellant.
    No. ED 92084.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 22, 2009.

      Ellen H. Flottman, Office of the Missouri Public Defender, Columbia, MO, for Appellant.

      Chris Koster, Attorney General, John W. Grantham, Assistant Attorney General, Jefferson City, MO, for Respondent.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Thurman Shelton (Defendant) appeals from the trial court’s judgment, following a jury trial, convicting him of involuntary manslaughter, in violation of Section 565.024, RSMo (2000), assault in the first degree, in violation of Section 565.050, and armed criminal action, in violation of Section 571.015. Defendant was sentenced to consecutive terms of imprisonment of seven years, thirty years, and thirty years, respectively. Finding no abuse of discretion in the trial court’s admission of a hearsay statement, we affirm.

Background

Because Defendant does not dispute the sufficiency of the evidence, we will review only those facts relevant to Defendant’s claim on appeal. Viewing the evidence in the light most favorable to the verdict, the following evidence was adduced at trial.

Christina Luckett (Luckett) and April Penn (Penn) were friends who, between January and March 2006, were working on Luckett’s home in East St. Louis, Illinois. At some point during that time frame, Luckett and Penn visited a casino in St. Charles, Missouri, where they met Defendant. During that meeting, Defendant and Luckett exchanged telephone numbers. Several days later Luckett and Penn met up with Defendant and his friend at Luckett’s hotel room in downtown St. Louis, Missouri. Luckett and Penn stayed in the hotel for about a week, during which time Defendant would visit and occasionally spend the night with Luckett. After the first week, Luckett and Penn moved to a different hotel in St. Louis. Defendant went with them to the new hotel. At some point Defendant introduced Penn to a man named Michael. Penn was under the impression Michael’s last name was “Wilson,” though she later learned it was “Harris.” Shortly thereafter, Penn and Harris started dating.

On March 14, 2006, the group — Luckett, Penn, Defendant, and Harris — traveled to Luckett’s mother’s home in Quincy, Illinois, where they spent the night. The next morning Defendant informed the group that he received a phone call from the mother of his child who wanted him to come visit his child. The group then decided to return to St. Louis. Luckett drove her car with Defendant in the passenger seat and Penn and Harris in the backseat — Penn behind Defendant and Harris behind Luckett. Upon returning to St. Louis, Defendant instructed Luckett to drive to an apartment complex. When they arrived at the apartments, Defendant directed Luckett to drive to the back of the complex and back into a parking space. After a discussion about meeting up later, Defendant exited the car and went to the trunk where he retrieved his belongings, including a backpack. Defendant then walked to Luckett’s door, placed his backpack on the top of the car near the car’s sunroof, opened the door and gave Luckett a kiss, and then closed Luckett’s door. Penn testified that she then heard a gunshot and saw Luckett’s head “flopping.” Defendant testified that the shooting was an accident and that when he went to pick up his belongings, including the gun, from the top of the car, the gun accidentally fired. Immediately following the gunshot, Penn heard Harris state “I thought you were just bullshitting, I didn’t really think you were going to do it.” Harris then exited the car while Penn was screaming. Penn then heard another gunshot and felt a burning on the side of her head. Penn put her head on her lap and pretended to be dead. Defendant and Harris then removed Luckett from the car. They returned and grabbed Penn, carried her to a ditch behind the car, and threw her on top of Luckett. The men then left with the car.

The State of Missouri (State) charged Defendant by Indictment on April 19, 2006, with seven counts stemming from the March 15, 2006 incident. Counts I and II charged one count of murder in the first degree, in violation of Section 565.020, and one count of armed criminal action, in violation of Section 571.015, for the shooting death of Luckett. Counts III and IV charged one count of assault in the first degree, in violation of Section 565.050, and one count of armed criminal action for the shooting of Penn. Counts V and VI charged one count of robbery in the first degree, in violation of Section 569.020, and one count of armed criminal action for the armed robbery of Luckett’s vehicle. Count VII charged one count of tampering with physical evidence, in violation of Section 575.100, for concealing the bodies of Luckett and Penn. The State later filed an Information in Lieu of Indictment charging all seven counts listed on the Indictment, however later entered an order of nolle prosequi as to Count VII.

Prior to the start of his trial, Defendant filed a motion in limine on September 8, 2008, seeking an order precluding the State from making reference to a variety of evidence including the statement by Harris to Defendant made shortly after the shooting of Luckett. Defendant believed the State would produce evidence of Harris’s statement to Defendant that, “I thought you were just bullshitting; I didn’t think you would really do it.” Defendant argued that the statement should be excluded as hearsay.

Defendant was tried before a jury on September 9 through 13, 2008. During the trial, Defendant objected to Penn’s testimony regarding Harris’s statement on the grounds that said statement was hearsay and was an inadmissible statement of a co-conspirator. The State argued that Harris’s statement fell under the excited utterance exception to the hearsay rule and was also admissible under the exception for statements made between co-conspirators. The trial court overruled Defendant’s objection and allowed the statement into evidence on the basis of the excited utterance exception to the hearsay rule.

Defendant also objected to the admission of Harris’s statement when it was presented to the jury through Detective Michelle Merriwether’s (Detective Merri-wether) testimony. Detective Merriwether testified that Penn told her during an interview that immediately after hearing the first gunshot, Harris stated, “I thought you were bullshitting. I didn’t think you was really going to do it.” Defendant objected on the basis that Detective Merri-wether’s testimony constituted hearsay, bolstering, and cumulative evidence. The trial court overruled Defendant’s objection, allowing the State to ask only one witness to repeat the statement for the purpose of corroborating that the statement was not a recent fabrication of Penn’s.

At the conclusion of the trial the jury found Defendant guilty of involuntary manslaughter, first degree assault, and armed criminal action. The jury found Defendant not guilty on the other counts. The jury recommended a sentence of seven years of imprisonment for the involuntary manslaughter conviction, and thirty years of imprisonment each for the remaining two convictions.

Defendant filed a motion for new trial on October 3, 2008, asserting, among a number of other claims, that the trial court erred in overruling Defendant’s objection to Harris’s statement offered through the testimony of Penn and Detective Merri-wether. Defendant claimed that Penn’s testimony was inadmissible hearsay and Detective Merriwether’s testimony was improper bolstering. The trial court denied Defendant’s motion for a new trial.

The trial court entered its Sentence and Judgment according the jury’s verdicts and recommendations on October 17, 2008.

Defendant filed a Notice of Appeal on October 27, 2008. This appeal follows.

Point on Appeal

Defendant asserts that the trial court abused its discretion when it overruled Defendant’s objections to the testimony of Penn and Detective Merriwether regarding the statement made by Harris to Defendant, “I thought you were just bullshitting. I didn’t really think you were going to do it.” Defendant claims Penn’s testimony was hearsay and did not fall into the co-conspirator or excited utterance exceptions to the hearsay rule, and also violated the Confrontation Clause of the Constitution. In a separate claim of trial error, Defendant asserts Detective Merriwether’s testimony was double hearsay, which improperly bolstered Penn’s testimony.

Standard of Review

A trial court has broad discretion in admitting or excluding evidence at trial. State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006). Our standard of review compels the reversal of a trial court’s ruling on the admission of evidence only if the court has clearly abused its discretion. Id. An abuse of discretion occurs when “a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.” Id. Additionally, on direct appeal, we review the trial court, not just for mere error, but for prejudice, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. Id. at 223-24. An error is not prejudicial unless there is a reasonable probability that the error affected the outcome of the trial. Id. at 224.

Discussion

A hearsay statement is an out-of-court statement used to “prove the truth of the matter asserted and that depends on the veracity of the statement for its value.” State v. Kemp, 212 S.W.3d 135, 146 (Mo. banc 2007). Harris did not testify at Defendant’s trial, but his statement about Defendant shooting Luckett was admitted through the testimony of Penn, and then Detective Merriwether. Harris’s out-of-court statement was used to prove the truth of the matter asserted: that Defendant had previously spoken to Harris about shooting or killing Luckett. This statement was critical to the State’s attempt to prove Defendant committed first-degree murder, and that the shooting was not accidental. Harris’s statement is hearsay evidence. Accordingly we must now determine whether the hearsay statement was admissible under an exception to the general hearsay rule.

I. Penn’s Testimony

A. Excited Utterance

In order to be admissible, Penn’s testimony regarding Harris’s statement must fall under an exception to the general rule against hearsay evidence. See id. The trial court admitted Harris’s statement under the “excited utterance” hearsay exception. The “excited utterance” exception depends on a “startling or unusual occurrence sufficient to overcome normal reflection such that the ensuing declaration is a spontaneous reaction to the startling event.” Id. The Missouri Supreme Court has stated:

Courts have determined that excited utterances are inherently trustworthy because the startling nature of the event is speaking through the person instead of the person speaking about the event. Because the statement is spontaneous and made under the influence of events, the statement is assumed trustworthy because it is unadorned by thoughtful reflection. Among the factors to be considered in determining whether an excited utterance exists are [1] the time between the startling event and the declaration, [2] whether the declaration is in response to a question, [3] whether the declaration is self-serving, and [4] the declarant’s physical and mental condition at the time of the declaration. While no one factor necessarily results in automatic exclusion, all should be considered in determining whether the declaration was the result of reflective thought.

Id., quoting Bynote v. Nat’l Super Markets, Inc., 891 S.W.2d 117, 122 (Mo. banc 1995).

The Court then went on to explain:

The essential test for admissibility of a spontaneous statement or excited utterance is neither the time nor place of its utterance but whether it was made under such circumstances as to indicate it is trustworthy. This exception is premised on the idea that where the statement is made under the immediate and uncontrolled domination of the senses as a result of the shock produced by the event, the utterance may be taken as expressing the true belief of the declar-ant.

Id., quoting State v. Strong, 142 S.W.3d 702, 718 (Mo. banc 2004).

The record before us clearly confirms that the trial court properly considered Penn’s statement admissible as an excited utterance. First, Penn testified that immediately after Defendant shot Luckett, Harris exclaimed to Defendant, “I thought you were just bullshitting, I didn’t really think you were going to do it.” Reviewing the elements set forth by the Missouri Supreme Court in Kemp to determine whether the statement was an excited utterance, we first examine the time between the event and the declaration. Penn testified that mere seconds passed between Defendant’s shooting of Luckett and Harris’s statement. The immediacy of Harris’s statement supports a finding that the statement was an excited utterance. Second, Harris’s declaration was not in response to a question, but instead was an immediate and direct response to Defendant’s sudden shooting of Luckett. Harris’s reaction to the shooting is wholly consistent with the excited utterance exception. Third, the declaration was not self-serving. To the contrary, Harris’s statement is adverse to his interest as the statement tends to show that Harris was aware that Defendant said he planned to shoot Luckett before Defendant actually committed the act. Finally, examining Harris’s physical and mental condition at the time of the statement, there is sufficient evidence from which the trial court could reasonably conclude that Harris was clearly shocked and surprised at the time he made the statement. The evidence shows that Harris suddenly jumped out of the car after Defendant shot Luckett, and then made the statement. The circumstances surrounding the shooting strongly support a finding that Harris’s statement was made “under the immediate and uncontrolled domination of the senses as a result of the shock produced by the event.” See id. The trial court did not abuse its discretion in admitting Penn’s testimony as to the statement made by Harris as an “excited utterance” exception to the hearsay rule.

B. Confrontation Clause

Having survived traditional hearsay analysis, Harris’s out-of-court statement must now clear the second hurdle: the Confrontation Clause of the Sixth Amendment, which applies to all criminal prosecutions. See id. Defendant argues that the trial court’s admission of Harris’s statement violated his constitutional right to confront the witnesses against him. Although similar to the hearsay analysis, the Confrontation Clause analysis is a separate and distinct evidentiary determination. See id.

The Sixth Amendment Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause prohibits “admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” It is the testimonial nature of a statement that makes a declarant a “witness” that the defendant has the right to confront. Id. at 51, 124 S.Ct. 1354.

The threshold questioning analyzing a Confrontation Clause Claim is whether the out-of-court statement is testimonial. Crawford defines “testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. The Court continues to state that “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. Confrontation Clause protection does not extend to situations where governmental or law enforcement involvement does not exist. In the Interest of N.D.C., 229 S.W.3d 602, 605 (Mo. banc 2007), citing Kemp, 212 S.W.3d 135. In those situations, the statement is non-testimonial and Crawford does not provide Sixth Amendment protection. Id.

The record supports a finding that Harris’s statement to Defendant was not testimonial. Harris was not talking to any government official or police officer when he made the statement; he was talking only to Defendant. Because Harris’s statement was not testimonial, Crawford and the Confrontation Clause analysis do not apply. Harris’s statement was properly admitted through Penn’s testimony as an excited utterance exception to the hearsay rule and did not violate the Confrontation Clause.

II. Detective Merriwether’s Testimony

Defendant also claims that the trial court erred in admitting Detective Mer-riwether’s testimony regarding Harris’s statement to Defendant, and asserts said testimony was improper bolstering.

“Improper bolstering occurs when an out-of-court statement of a witness is offered solely to duplicate or corroborate trial testimony.” Forrest, 183 S.W.3d at 224, quoting State v. Wolfe, 13 S.W.3d 248, 257 (Mo. banc 2000). However, improper bolstering does not occur when the out-of-court statement is offered for relevant purposes other than corroboration and duplication, such as when the statement is offered for rehabilitation. Wolfe, 13 S.W.3d at 257 (Mo. banc 2000).

When Detective Merriwether’s testimony regarding Harris’s statement drew the objection of Defendant, the State explained to the court that its purpose for introducing Detective Merriwether’s testimony was not improper bolstering; rather, Merri-wether’s testimony was necessary to rehabilitate Penn’s testimony following cross-examination, and to prove that Penn’s statement was not a “recent fabrication.” The State’s use of Detective Merriwether’s testimony was proper. We further note the trial court’s precaution by restricting the State to only one witness to testify about Penn’s recitation of Harris’s statement, and thereby limiting the repetition of Harris’s statement before the jury. This restriction precluded the presentation of cumulative evidence regarding Harris’s statement.

The trial court did not err and did not abuse its discretion in when it allowed Penn and Detective Merriwether to testify about the statement made by Harris. Defendant’s point on appeal is denied.

Conclusion

The judgment of the trial court is affirmed.

KENNETH M. ROMINES, C.J., and GEORGE W. DRAPER III, J., Concur.

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

      . Defendant inappropriately combines two alleged errors of the trial court into one point on appeal in violation of Supreme Court Rule 84.04(d). Despite Defendant’s failure to comply with Rule 84.04, we will consider ex gratia his claims for abuse of discretion.

      . Because we find Harris's statement admissible under the “excited utterance” exception to the hearsay rule, we need not address Defendant’s assertion that the statement did not fall under the "co-conspirator” exception.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Darnell PEETE, Appellant.
    No. ED 93094.
    Missouri Court of Appeals, Eastern District, Division Three.
    June 8, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 14, 2010.
    Scott Thompson, Saint Louis, MO, for Appellant.
    Chris Koster, Attorney General, James B. Farnsworth, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and ROY L. RICHTER, J.
   ORDER

PER CURIAM.

Darnell Peete appeals the judgment entered upon a jury verdict convicting him of rape, sodomy and child molestation in the first degree. No error of law appears. An extended opinion would have no prece-dential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 30.25(b).


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

text:
    Keith JOHNSON, d/b/a Johnson Interior Improvement, Respondent, v. Scott and Laura HEITLAND, Appellants.
    No. ED 93631.
    Missouri Court of Appeals, Eastern District.
    June 15, 2010.
    Philip J. Christofferson, St. Louis, MO, for Appellant.
    James M. Benson, St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Scott and Laura Heitland (“the Homeowners”) appeal from the judgment of the trial court in favor of the Homeowners in the amount of $41,005.42 on their breach of contract counterclaim and in favor of Keith Johnson (“Johnson”) in the amount of $17,726.35 on his breach of contract claim. The Homeowners contend the trial court erred in entering judgment in favor of each party on their respective breach of contract claims and in denying their motion to amend the judgment because Missouri law required the entry of only one judgment in favor of the Homeowners. We affirm as modified.

The parties provided an agreed upon statement of the case pursuant to Rule 81.13, which set forth the following facts. The Homeowners are owners of a residence located at 46 Marshall Place in Webster Groves, Missouri. The residence was built in the 1860s. Johnson is a contractor who specializes in historical renovations and additions to older homes.

On March 15, 2005, the Homeowners and Johnson entered into a contract whereby Johnson agreed to construct an addition to the residence and to perform certain renovations to the existing residence. In return, the Homeowners agreed to pay Johnson $209,230.00.

On January 23, 2006, the Homeowners and Johnson amended the contract to provide that Johnson would also perform renovations to a separate carriage house at the residence, and the Homeowners in return would pay Johnson an additional $85,720.00.

On several other occasions during the course of Johnson’s work, the parties agreed to various additions to the scope of the work. Johnson performed most of the work under the contract as amended. However, a dispute arose between the parties regarding the quality of the work. The Homeowners withheld payment of the final $17,726.35 due under the contract because of the alleged defective work.

On March 27, 2007, Johnson filed a petition against the Homeowners alleging they breached the contract by failing to pay the $17,726.35 due under the contract. The Homeowners subsequently filed a counterclaim, alleging Johnson breached the contract by performing defective work and by failing to complete the work.

After a trial, judgment was entered May 12, 2009. The trial court found the Homeowners were entitled to judgment in the amount of $41,005.42 on their counterclaim. The trial court also found Johnson was entitled to judgment in the amount of $17,726.35 on his claim.

Johnson paid all sums due to the Homeowners, who, in turn, filed a partial satisfaction of judgment acknowledging they received payment of the principal amount of $23,279.07 as well as accrued post-judgment interest through and including November 20, 2009. This appeal follows.

In their sole point, the Homeowners argue the trial court erred in entering judgments in favor of each party on their respective claims for breach of contract and in denying the Homeowners’ motion to amend the judgment because Missouri law required the entry of only one judgment in favor of the Homeowners in that the parties’ respective claims arose from the same contract and the greater finding was made in favor of the Homeowners. We agree.

As in all court-tried civil cases, the standard of review in this case is the one set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976): the trial court’s judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Martin v. Director of Revenue, 248 S.W.3d 685, 687 (Mo.App. W.D.2008). However, if the evidence is uncontroverted, as it is in this case, and the real issue is a legal one, there is no need to defer to the trial court’s judgment. Id.

Where separate trials were not ordered or had, there should be only one final judgment which should dispose of all parties and all issues. White River Development Co. v. Meco Systems. Inc., 837 S.W.2d 327, 334 (Mo.App. S.D.1992). Moreover, in a suit at law for a money judgment where there is only one count in the petition, and only one in a counterclaim filed there can be only one judgment. Id. Thus, while there should be separate findings upon a plaintiffs cause of action and upon a defendant’s counterclaim, one final judgment should be entered, which in the usual practice, recites the respective findings, and concludes with a judgment for the party in whose favor the greater finding was made, and for a sum which represents the excess over that found for his adversary. Id., quoting Rehm v. Fishman, 395 S.W.2d 251, 255 (Mo.App.1965).

In this case, the trial court found the Homeowners were entitled to judgment in the amount of $41,005.42 on their counterclaim, and the trial court also found Johnson was entitled to judgment in the amount of $17,726.35 on his claim. Both claims were based on the same contract.

Therefore, the trial court erred in entering judgments in favor of each party on their respective claims for breach of contract and in denying the Homeowners’ motion to amend the judgment. Point granted.

Rule 84.14 provides: “The appellate court shall ... give such judgment as the court ought to give. Unless justice otherwise requires, the court shall dispose finally of the case.” Therefore, we will modify the judgment to dispose of the case. The judgment reflected a finding in favor of the Homeowners on the issues in their counterclaim for breach of contract against Johnson and assessed damages thereon in the amount of $41,005.42; and moreover the judgment reflected a finding in favor of Johnson on the issues in its claim and assessed damages thereon in the amount of $17,726.35. Therefore, we now modify the judgment so that it is shown to have been entered in favor of the Homeowners and against Johnson for the difference between the amounts of damages allowed. Specifically, Johnson shall be ordered to pay the Homeowners $23,279.07.

The judgment of the trial court is affirmed as modified.

SHERRI B. SULLIVAN, P.J. and PATRICIA L. COHEN, J., concur.


author: ROBERT S. BARNEY, Judge.

text:
    Bobbie O’NEAL, Appellant, v. MARANATHA VILLAGE, INC., Respondent, and Division Of Employment Security, Respondent.
    No. SD 29998.
    Missouri Court of Appeals, Southern District, Division One.
    June 23, 2010.

      Craig R. Heidemann and Nathan Duncan, Douglas, Haun & Heidemann, P.C., Bolivar, for Appellant.
    Shelly A. Kintzel, Jefferson City, for Respondent.
   ROBERT S. BARNEY, Judge.

Bobbie O’Neal (“Claimant”) appeals from the Labor and Industrial Relations Commission’s (“the Commission”) “Order” adopting the decision of the Appeals Tribunal which had determined that Claimant was ineligible for unemployment compensation benefits following her termination from Maranatha Village, Inc. (“Employer”). In her sole point relied on, Claimant argues the Commission erred in affirming the decision of the Appeals Tribunal because such a decision was not supported by competent and substantial evidence. We affirm the decision of the Commission.

Claimant began working for Employer on November 17, 2008, as a nurse’s aide. She was terminated from her employment on March 17, 2009, due to her failure to complete a certification examination to become a certified nursing assistant. Claimant then filed her initial request for compensation and was notified by the Division that she was “not disqualified” from receiving benefits. Employer then filed a notice of appeal to the Appeals Tribunal and a hearing was held on June 5, 2009. The Appeals Tribunal determined that, due to her failure to complete certain certification requirements, Claimant could not continue in her position with Employer such that she was not “discharged” under the law, but she instead “left work voluntarily [on March 17, 2009,] without good cause attributable to the work or to [Employer].” Accordingly, the Appeals Tribunal reversed the prior decision and found Claimant was disqualified from receiving benefits. Claimant next filed her Application for Review with the Commission on June 23, 2009. Thereafter, the Commission affirmed the decision of the Appeals Tribunal and Claimant filed a letter requesting reconsideration of the decision. This request for reconsideration was denied by the Commission on August 5, 2009. This timely appeal by Claimant followed.

In her sole point relied on, Claimant urges Commission error in its affir-mance of the Appeals Tribunal’s decision disqualifying her from receiving benefits. Specifically, she asserts such a decision was contrary to the evidence

in that Missouri law did not require [Claimant] to be a certified nurse to work as a nurse’s aide and in that [Claimant’s] failure to qualify as a certified nurse had nothing to do with her ability to perform work as a nurse’s aid[e] because she was not hired to work as a certified nurse but as a nurse’s aide.[]

This Court’s review of the Commission’s decision in an unemployment compensation case is governed by both Article 5, Section 18 of the Missouri Constitution and section 288.210 of the Missouri statutes. Ragan v. Fulton State Hosp., 188 S.W.3d 473, 474 (Mo.App.2006). In our review, we

may modify, reverse, remand for rehearing, or set aside the decision of the Commission only where: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was no sufficient competent evidence in the record to warrant the making of the award.

Ayers v. Sylvia Thompson Residence Ctr., 211 S.W.3d 195, 197-98 (Mo.App.2007); § 288.210. “The findings of the [CJommission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law.” § 288.210. “ ‘We examine the whole record to determine whether there is sufficient competent and substantial evidence to support the award.’ ” Weinbaum v. Chick, 223 S.W.3d 911, 913 (Mo.App.2007) (quoting Scrivener Oil Co., Inc. v. Div. of Employ. Sec., 184 S.W.3d 635, 638 (Mo.App.2006)). We defer to the Commission on the resolution of conflicting evidence regarding a factual issue, the weighing of evidence, and the credibility of witnesses. Burns v. Labor & Indus. Comm’n, 845 S.W.2d 553, 554-55 (Mo. banc 1993). Notwithstanding this deference, this Court reviews questions of law de novo. Dixon v. Div. of Empl. Sec., 106 S.W.3d 536, 540 (Mo.App.2003).

At the hearing before the Appeals Tribunal, Jenni Hall (“Ms. Hall”), Employer’s business manager, testified that Claimant was discharged from her employment position because when she was hired she was “notified that she would have to be certified within 120 days and she failed to get that certification and according to [s]tate [regulations [employees in her position] cannot work past 120 days without being certified.” See § 198.082, RSMo Cum.Supp.2003; 19 CSR 30-84.010(6)(H) (2007). She related Claimant was required to take certain classes and complete certain tests in order to receive her certification. Ms. Hall also testified that Claimant failed one of the tests and did not complete the certification course. She related that Employer had no choice in terminating Claimant’s employment because continuing to employ Claimant would be contrary to state regulations.

Claimant testified that her supervisor informed her on March 17, 2009, that she was being discharged for failing to pass a certification test and that such a failure prevented her from continuing the coursework. She related she was allowed to take the test three times and remained unable to pass it. Claimant testified that she was aware that completing the classes was a requirement of her employment and she stated Employer paid for the classes as well as adjusted Claimant’s work schedule accordingly in order to accommodate her class schedule. Further, she admitted that she knew if she failed to receive the required certification she would be fired.

Section 288.050.1(1), RSMo Cum. Supp.2007, states in pertinent part that:

Notwithstanding the other provisions of this law, a claimant shall be disqualified for waiting week credit or benefits until after the claimant has earned wages for work insured pursuant to the unemployment compensation laws of any state equal to ten times the claimant’s weekly benefit amount if the deputy finds:
(1) That the claimant has left work voluntarily without good cause attributable to such work or to the claimant’s employer....

“The claimant has the burden of proof with respect to eligibility for benefits.” Miller v. Help At Home, Inc., 186 S.W.3d 801, 806 (Mo.App.2006). “Thus, if the receipt of benefits is challenged by the employer, for the employee’s voluntarily leaving employment without good cause, the employee has the burden of showing that either he did not leave employment voluntarily, or, that if he did, he did so with good cause.” Id. Additionally, “ ‘[wjhile the terms that the parties use to describe cessation of an employee’s employment may be instructive, the relevant facts and circumstances are controlling.’ ” Id. (quoting Worley v. Div. of Empl. Sec., 978 S.W.2d 480, 483 (Mo.App.1998)). This Court defers to the Commission in such factual determinations, but reviews questions of law de novo. Sartori v. Kohner Props., Inc., 277 S.W.3d 879, 885 (Mo.App.2009).

On the issue of whether Claimant voluntarily left her employment, we find this matter is akin to that found in Bd. of Educ. of the City of St. Louis v. Labor & Indus. Rel. Comm’n, 633 S.W.2d 126 (Mo.App.1982). In that case, a teacher was hired with a temporary teaching certificate that “allowed her to teach 45 days during the school year.” Id. at 127. “At the request of the [Board of Education], the State Board granted [the teacher] a 45 day extension of her temporary certifícate;” however, “[a]t the end of ... 90 days [the teacher] was prohibited from teaching in a public school by [statute] and the Board [of Education] was prohibited from offering her further employment in that school year....” Id. After being discharged from her employment, the teacher applied for unemployment compensation benefits and the Board of Education countered by asserting she “was not eligible for unemployment benefits because she had ‘voluntarily quit..'..’” Id. After appeals from both sides, the matter made its way to the circuit court which “concluded that it was technically the ‘fault’ of [the teacher] that she was unemployed, as the word fault not only means misconduct, but also includes the ‘failure of volition’ by an employee in retaining a job.” Id. at 128. As such, the circuit court found the teacher was disqualified from unemployment benefits. Bd. of Educ., 633 S.W.2d at 128. The teacher appealed. Id.

On appeal, noting that this was a case of first impression at the time, the Western District of this Court noted

at the onset that everyday definitions of such pivotal terms as ‘voluntary,’ ‘discharge’ and ‘fault’ are not easily plugged into a factual situation such as this one to reach consistent results. For example, one could say that the [teacher] here did not leave her job because she ‘wanted to,’ but only because she was forced to leave by operation of law. In this sense, her leaving was ‘involuntary’ and she should qualify for benefits. On the other hand, another could say that it was the claimant’s ‘fault’ that she lost her job because she did not have a permanent certificate, and she should therefore be denied benefits.

Id. After reviewing Missouri case law as well as case law from other jurisdictions, the reviewing court concluded that the teacher

left her work ‘voluntarily’ and is therefore disqualified for benefits under section] 288.050.1(1). [The teacher] accepted her employment with her eyes wide-open, fully aware that she would be unemployed when the 45 day certificate and its extension expired. There is no question that she ‘exercised a free-will choice and control’ as to the consequences of her actions, and that her leaving was therefore voluntary.

Id. at 133. It went on to find that

[t]he general provision that an employee should not be denied benefits if he becomes unemployed ‘through no fault of his own’ is also ruled adversely to the [teacher]. Under the rationale in Neeley [v. Indus. Comm’n, 379 S.W.2d 201 (Mo.App.1964) ], the term fault is not limited to ‘conduct of the employee which is blameworthy, culpable, wrongful or worthy of censure, but means a failure of volition.’ The failure here was that the [teacher] did not obtain the necessary certification to teach past the 90 days. When [she] took the job she knew of this ‘failure’ or deficiency in her professional status, and it should have come to no surprise to her that the Board could employ her no longer.

Id. Accordingly, the appellate court upheld the decision of the circuit court which denied the teacher’s claim for compensation. Bd. of Educ., 633 S.W.2d at 134.

As in Bd. of Educ., there was evidence that Claimant was only permitted to work for Employer for a period of 120 days without having her certified nursing assistant certificate and that if she continued to work for Employer after that period of time, then Employer would be in violation of the statutes and regulations of this State governing her type of employment. Claimant was aware when she took her position with Employer that her employment was conditioned on her attending the various classes and completing the tests necessary for her to attain her required certification and she failed to complete the certification process despite taking one of the exams on three separate occasions. As in Bd. of Educ., 633 S.W.2d at 133, “[w]hen [Claimant took the job she knew of this ‘failure’ or deficiency in her professional status, and it should have come to no surprise to her that [Employer] could employ her no longer.” It is clear under this analysis that Claimant left her position with Employer “voluntarily.” § 288.050.1(1), RSMo Cum.Supp.2007.

Additionally, Claimant failed to prove she left her employment due to good cause. § 288.050.1(1), RSMo Cum.Supp. 2007. Whether a claimant had good cause to quit, attributable to her employer or work, is a question of law that this Court reviews de novo. Shelby v. Hayward Baker, Inc., 128 S.W.3d 164, 170 (Mo.App.2004). “Good cause” has no precise meaning and it depends on the facts of each individual ease. Id.

‘An employee has good cause to quit his employment if his conduct is consistent with what a reasonable person acting in good faith would do in a similar situation. The circumstances motivating an employee to quit must be caused by external pressures so compelling that a reasonably prudent person would be justified in terminating his employment.’

Wheeler v. Poor Boy Tree Service, Inc., 252 S.W.3d 253, 257 (Mo.App.2008) (quoting Shelby, 128 S.W.3d at 170). “Conditions which motivate the employee to voluntarily leave ‘must be real, not imaginary, substantial, not trifling, and reasonable, not whimsical, and good faith is an essential element.’ ” Quik ’N Tasty Foods, Inc. v. Div. of Employ. Sec., 17 S.W.3d 620, 626 (Mo.App.2000) (quoting Hessler v. Labor & Indus. Rel. Comm’n, 851 S.W.2d 516, 518 (Mo.1993)). The burden of proof to prove good cause is on the claimant. Wheeler, 252 S.W.3d at 257-58.

Here, Employer went out of its way to aid Claimant in receiving her certification by paying for her classes and tests as well as re-arranging her work schedule so that she could prepare for and attend those classes. Ms. Hall testified that if Claimant had completed the necessary certification it would have continued to employ her in her same position. As stated in Employer’s brief, “Employer should not be required to pay unemployment compensation when it still had work available and was in no way responsible for Claimant being unable to perform that work.” Claimant has not met her burden of proving she left her employment for good cause.

Based on the foregoing, it appears to this Court that section 288.050.1(1), RSMo Cum.Supp.2007, is applicable here in denying Claimant’s request for compensation benefits in that she “left work voluntarily without good cause attributable to such work or to ... [E]mployer.” The Commission’s findings were not in error. Point denied.

The order of the Commission denying Claimant’s request for benefits is affirmed.

BATES, P.J., and BURRELL, J„ concur.

      . The Division of Employment Security ("the Division”) does not appear in this appeal. Additionally, it appears that Employer is a "skilled nursing facility” under the laws of this State.

      .We note that, aside from cases on the standard of review, Claimant fails to cite any cases in her appellate brief which support her argument. " ‘The appellant has an obligation to cite appropriate and available precedent if he [or she] expects to prevail, and, if no authority is available to cite, [the appellant] should explain the reason for the absence of citations.'" Walk v. Breckenridge Edison Dev., L.C., 260 S.W.3d 839, 840 (Mo.App.2008) (quoting Brown v. Ameristar Casino Kansas City, Inc., 211 S.W.3d 145, 148 (Mo.App.2007)). “If the appellant does not cite relevant authority or explain why such authority is unavailable, the appellate court is justified in considering the points abandoned and dismissing the appeal." Id. at 841. We have chosen to review Claimant’s point ex gratia.

      . Unless otherwise stated, all statutory references are to RSMo 2000.

      . Section 198.082, RSMo Cum.Supp.2003, provides:
      1. Each nursing assistant hired to work in a skilled nursing or intermediate care facility after January 1, 1980, shall have successfully completed a nursing assistant training program approved by the department or shall enroll in and begin the first available approved training program which is scheduled to commence within ninety days of the date of the nursing assistant's employment and which shall be completed within four months of employment. Training programs shall be offered at any facility licensed or approved by the department of health and senior services which is most reasonably accessible to the enrollees in each class. The program may be established by the skilled nursing or intermediate care facility, by a professional organization, or by the department, and training shall be given by the personnel of the facility, by a professional organization, by the department, by any community college or by the vocational education department of any high school. 2. As used in this section the term 'nursing assistant' means an employee, including a nurse’s aide or an orderly, who is assigned by a skilled nursing or intermediate care facility to provide or assist in the provision of direct resident health care services under the supervision of a nurse licensed under the nursing practice law,.... This section shall not apply to any person otherwise licensed to perform health care services under the laws of this state. It shall not apply to volunteers or to members of religious or fraternal orders which operate and administer the facility, if such volunteers or members work without compensation.


author: JEFFREY W. BATES, Presiding Judge.

text:
    Rodney DENNIS, Petitioner-Respondent, v. Waylan HENLEY, Respondent-Appellant.
    No. SD 30012.
    Missouri Court of Appeals, Southern District, Division One.
    June 29, 2010.

      Abe Robley Paul, Pineville, MO, for Appellant.
    Respondent acting pro se.
   JEFFREY W. BATES, Presiding Judge.

Waylan Henley (Henley) appeals from a judgment granting Rodney Dennis (Dennis) a full order of protection pursuant to the Adult Abuse Act (the Act) after a bench trial. See §§ 455.010-.090. On appeal, Henley challenges the sufficiency of the evidence to support the judgment. Because the evidence presented was insufficient to authorize the entry of a full order of protection against Henley for stalking, we reverse the judgment. The case is remanded to the trial court with instructions to vacate the full order of protection and deny the request for an order of protection.

I. Standard of Review

Appellate review of a court-tried case is governed by Rule 84.13(d). Foster v. Village of Brownington, 140 S.W.3d 603, 607 (Mo.App.2004). The trial court’s judgment must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). On appeal, this Court views the evidence in the light most favorable to the judgment and defers to the trial court’s credibility determinations. Binggeli v. Hammond, 300 S.W.3d 621, 623 (Mo.App.2010).

II. Factual and Procedural Background

Henley lives in Springdale, Arkansas, and is the developer of a subdivision in Missouri called Sugar Creek Trails Estates. The subdivision’s restrictive covenants prohibit the riding of four-wheelers, except on the common roads.

Dennis’ girlfriend, Jaymi Hobbie (Jay-mi), purchased 30 acres of land from Henley. The property contained a house and two barns. Around March 15, 2008, Dennis and his daughter moved into the house with Jaymi and her two children. Thereafter, Henley asked Dennis if he wanted to buy certain gates stacked up in one of the barns. Dennis told Henley to speak to Jaymi about it. Dennis described Henley as a larger man than himself — Dennis being “5-11, 160, 165 pounds” compared to Henley, who was “6-2 and weighed 220.”

In January 2009, Henley’s gates were still stacked in the barn. In addition, an auger belonging to Henley was on Jaymi’s property. Dennis had borrowed the auger from Henley, with his permission, to dig holes for fence posts. Before January 14, 2009, Dennis and Henley had gotten along well and had no problems with one another.

On January 14, 2009, Henley was sitting in his pickup, which was parked on his property. Jaymi’s son, Chris Hobbie (Chris), and Dennis were riding four-wheelers near a creek in the subdivision, looking for their dog. They pulled up right next to Henley’s pickup. Henley told Dennis and Chris about the restrictive covenant and asked them not to ride their four-wheelers off the common roads. According to Dennis, the conversation “ended in Mr. Henley slamming his door onto me and jumping out and grabbing me and hitting me.” At this point, Chris left to call the sheriff. Dennis got loose from Henley and jumped onto the four-wheeler. As he tried to drive away, Henley stepped in front of the vehicle. Henley was knocked down and pinned beneath the four-wheeler. Dennis got off the machine, lifted it up and then helped Henley into his truck. Henley waited for the sheriff, and Dennis went home. According to Dennis, he “was scared” during this altercation with Henley. At the end of Dennis’ direct examination, he gave the following testimony:

Q. Okay. And you — you filed this ex parte on January 15, '09; is that right?
A. That’s correct.
Q. Has [Henley] made any statements to you or did anything else that might put you in apprehension or fear?
A. Not since the incident on the 14th, no.

When the sheriff arrived, Henley asked if he could pick up his auger. The sheriff went to Jaymi’s house and asked Dennis if he would help load Henley’s auger into his pickup. Dennis declined because he was concerned about damaging Henley’s truck. There was some discussion about Henley returning to pick it up, and Dennis had no problem with that occurring. The sheriff reported this information to Henley and told him to get the auger at a later date.

On January 15, 2009, Dennis filed a pro se petition under the Act seeking an order of protection against Henley. The petition alleged that Dennis had no relationship with Henley, other than “we [Dennis and Jaymi] bought property from him as a developer.” Dennis further alleged that he was being stalked by Henley. A narrative statement explaining these allegations was included in the petition. In this narrative, Dennis made the following three assertions: (1) on January 14, 2009, Henley choked Dennis and hit him in the face; (2) Henley made repeated telephone calls to Dennis’ home; and (3) Henley entered Dennis’ property without permission. The petition alleged that Dennis was afraid of Henley because “he has threated [sic] me and said he would come back to finish the issues he says he has.” That same day, the trial court entered an ex parte order against Henley. A hearing on the petition was scheduled for later that month.

On January 22, 2009, the summons to Henley was returned non est. On January 24, 2009, Henley was in his pickup with his wife when he saw the auger lying “right off the road” on Jaymi’s property. He and his wife loaded the auger into the pickup. Dennis did not see Henley enter Jaymi’s property or load the auger. Dennis only saw them as they were leaving and told Jaymi. She immediately jumped into her pickup and drove ahead of Henley, blocking his path. Dennis drove his four-wheeler to the top of the hill where Henley was stopped. The record contains nothing to indicate that Henley did anything to cause Dennis to be fearful during this forced confrontation, and Henley was allowed to leave with his auger. After this incident, Dennis and Henley had no further personal contact with one another.

In March 2009, Dennis observed Henley on the road in front of Jaymi’s house on two occasions. On the first occasion, Dennis was standing near the barn with two other persons when Henley drove past and “flipped us the bird.” Dennis said this conduct made him “fearful.” On the second occasion, Dennis observed Henley park about 100 yards away from Jaymi’s house for 15-20 minutes and leave a trailer there. Henley owns nearby property which he shows and sells. Henley was on his way home to Springdale to return the trailer when he learned that potential buyers wanted to see a lot in the subdivision. Henley dropped the trailer off temporarily while he was showing the property. After doing so, he picked up the trailer and took it home. Dennis admitted that Henley owns property in the vicinity which he shows to prospective buyers from time to time. Nevertheless, Dennis opined that he could see no legitimate reason for Henley parking there or leaving his trailer there.

After the ex parte order of protection was issued, the case was continued several times. The first trial occurred on April 13, 2009. A full order of protection was issued that day. Because the hearing was not recorded, however, Henley’s counsel filed a motion to set aside the judgment and hold a new trial on the record. The trial court granted the request, vacated the April 2009 judgment and scheduled another hearing.

The case was tried a second time on June 3, 2009. After listening to the evidence, the court decided that Dennis proved he was being stalked by Henley. A full order of protection, effective for one year, was entered against Henley. This appeal followed.

III. Discussion and Decision

“Any adult who has been subject to abuse by a present or former adult family or household member, or who has been the victim of stalking, may seek relief ... by filing a verified petition alleging such abuse or stalking by the respondent.” § 455.020 RSMo (2000). Since Dennis and Henley do not fall within any of the various definitions of what constitutes a family or household member, Dennis could only seek an order of protection based upon an allegation of stalking. § 455.020 RSMo (2000); Towell v. Steger, 154 S.W.3d 471, 473 (Mo.App.2005). Stalking is defined to occur when:

[A]n adult purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person’s situation to have been alarmed by the conduct. As used in this subdivision:
(a) “Alarm” means to cause fear of danger of physical harm;
(b) “Course of conduct” means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted contact; and
(c) “Repeated” means two or more incidents evidencing a continuity of purpose.

§ 455.010(10) (bold emphasis in original). For conduct to have “no legitimate purpose,” it must be found to be not sanctioned by law or custom, to be unlawful, or not allowed. Towell, 154 S.W.3d at 475.

Dennis’ petition alleged that he was being stalked by Henley. To obtain a full order of protection, Dennis had to prove this allegation by a preponderance of the evidence. See § 455.040.1; Clark v. Wuebbeling, 217 S.W.3d 352, 354 (Mo.App.2007); Vinson v. Adams, 188 S.W.3d 461, 464-65 (Mo.App.2006).

“Because there is real harm that can result in abusing the Adult Abuse Act and its provisions, including the stigma that may attach to a respondent who is ultimately labeled a ‘stalker,’ trial courts must exercise great care to ensure that sufficient evidence exists to support all elements of the statute before entering a full order of protection.” McGrath v. Bowen, 192 S.W.3d 515, 517 (Mo.App.2006); Overstreet v. Kixmiller, 120 S.W.3d 257, 259 (Mo.App.2003); see Glover v. Michaud, 222 S.W.3d 347, 351 (Mo.App.2007). The Act is not, nor was it intended to be, “a solution for minor arguments between adults.” Binggeli v. Hammond, 300 S.W.3d 621, 624 (Mo.App.2010). Henley contends that Dennis failed to meet his burden of proof because there was insufficient evidence Henley engaged in a course of conduct that reasonably caused alarm to Dennis. This Court is constrained to agree.

In order for Dennis to prove his entitlement to a full order of protection, he had to present substantial evidence that Henley: (1) purposely and repeatedly; (2) engaged in an unwanted course of conduct; (3) that caused alarm to Dennis; (4) when it was reasonable in his situation to have been alarmed by the conduct. § 455.010(10). As defined by this subsection of the Act, a “course of conduct” must be composed of repeated acts over a period of time that serve no legitimate purpose. § 455.010(10)(b). “Repeated” is further defined to require two or more incidents demonstrating a continuity of purpose. § 455.010(10)(c). Alarm requires proof that the petitioner was placed in “fear of danger of physical harm.” § 455.010(10)(a). Proof of alarm involves both a subjective and an objective component. Glover, 222 S.W.3d at 352. Thus, Dennis had to present substantial evidence that: (1) Henley’s conduct caused Dennis to subjectively fear physical harm; and (2) a reasonable person under the same circumstances would have feared physical harm. Id.; Schwalm v. Schwalm, 217 S.W.3d 335, 337 (Mo.App.2007); § 455.010(10). The evidence in the case at bar was insufficient to prove a course of conduct that actually caused Dennis to be placed in fear of physical harm or that would have caused a reasonable person in Dennis’ situation to be alarmed.

Based upon this Court’s review of the record, the incident that occurred on January 14, 2009, was the only event that actually caused Dennis to be alarmed or that would have caused a reasonable person in Dennis’ situation to be alarmed. This was the only time when Dennis subjectively feared danger of physical harm or when a reasonable person in his situation would have done so. Although Dennis alleged in his petition that Henley had engaged in other conduct prior to January 14th, the evidence at trial did not prove that allegation. Dennis testified that he and Henley had no problems prior to the January 14th altercation and that they got along well. Dennis did testify that he “was scared” during that incident. Notwithstanding that testimony, one event alone is insufficient to prove stalking because of the absence of repeated acts over a period of time. In addition, Dennis gave the following testimony during his direct examination:

Q. Okay. And you — you filed this ex parte on January 15, '09; is that right?
A. That’s correct.
Q. Has [Henley] made any statements to you or did anything else that might put you in apprehension or fear?
A. Not since the incident on the 14th, no.

“It is well-settled that a party is bound by his own testimony which is not corrected or explained.” Ewanchuk v. Mitchell, 154 S.W.3d 476, 481 (Mo.App.2005). While the record does contain testimony about the auger incident in January 2009 and the two incidents in March 2009, none of these events is sufficient to prove the requisite course of conduct necessary for stalking to exist.

When Henley picked up his auger on January 24th, the evidence established that Jaymi used her pickup to prevent Henley and his wife from leaving. Dennis then drove his four-wheeler, of his own volition, to where Henley and his wife were stopped. Dennis presented no evidence that Henley said or did anything to cause Dennis to be placed in fear of physical harm. Based upon the above-quoted testimony from Dennis, the only reasonable inference is that no such conduct by Henley occurred. Indeed, an objective observer would be forced to conclude that Dennis and Jaymi were the aggressors in provoking this encounter with Henley.

There also was evidence that Henley parked his truck and left a trailer near Jaymi’s house while showing property in the vicinity. Dennis presented no evidence that this conduct caused him to subjectively fear the danger of physical harm from Henley. The record contains no evidence to support the conclusion that a reasonable person would have feared the danger of physical harm from such conduct. Moreover, an act cannot be used to prove the course of conduct required for stalking unless that act has no legitimate purpose. § 455.010(10)(b). Dennis admitted that Henley owned property in the vicinity and often showed the property to prospective buyers. Such conduct has a legitimate purpose, notwithstanding Dennis’ subjective and conclusory characterization to the contrary.

Finally, there was evidence that Henley made a rude hand gesture directed at Dennis while driving past Jaymi’s property. Although such conduct may well have been vulgar and boorish, it is not behavior which would cause a reasonable person in Dennis’ situation to be placed in fear of physical harm. See, e.g., George v. McLuckie, 227 S.W.3d 503, 508-10 (Mo.App.2007) (testimony about harassing text messages, driving by petitioner’s place of employment and “flipping [petitioner] off’ that only caused irritation and inconvenience, but not fear of danger of physical harm, was insufficient to prove stalking). Therefore, Dennis’ subjective testimony that this conduct made him “fearful” is insufficient. See C.B. v. Buchheit, 254 S.W.3d 207, 209 (Mo.App.2008).

In sum, Dennis presented insufficient evidence that Henley engaged in the statutorily-required “course of conduct” that is essential to prove stalking, as defined by § 455.010(10). The one incident that occurred on January 14, 2009, was insufficient to support the issuance of a full order of protection against Henley for stalking. See, e.g., H.K.R. v. Stemmons, 295 S.W.3d 220, 224 (Mo.App.2009) (one incident insufficient); Overstreet v. Kixmiller, 120 S.W.3d 257, 259 (Mo.App.2003) (one personal interaction and an office memo insufficient). Henley’s point on appeal is granted. The judgment is reversed, and the cause is remanded. The trial court is instructed to vacate the full order of protection and deny Dennis’ petition. Glover, 222 S.W.3d at 353.

BARNEY and BURRELL, JJ., concur.

      . All references to statutes are to RSMo Cum. Supp. (2009) unless otherwise specified. All references to rules are to Missouri Court Rules (2010).

      . Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      .Because two of the witnesses share the same surname, we use their first names for purposes of clarity.

      . The docket sheet contains no entry stating exactly when Henley was served with the ex parte order of protection. Henley testified that he was served on January 24th, but there is no indication in the record that service had been made before he picked up his auger.