author: JEFFREY W. BATES, Presiding Judge.

text:
    In the ESTATE OF: Ronald Steven BLAIR, Deceased, Sean Blair, Claimant-Appellant, v. Sharon Blair, Respondent-Respondent.
    No. SD 29688.
    Missouri Court of Appeals, Southern District, Division One.
    April 30, 2010.
    Motion for Rehearing or Transfer Denied May 24, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Greggory Dean, Groves, Springfield, MO, for Appellant.
    James M. Owen, Springfield, MO, for Respondent.
   JEFFREY W. BATES, Presiding Judge.

Sean Blair (Sean) appeals from a decree of final distribution entered in the estate of his father, Ronald Blair (Ronald). The trial court decided that a tract of real estate included in the inventory was not part of the estate because title to that property vested in Sharon Blair (Sharon), upon Ronald’s death. The judgment is affirmed.

In this court-tried case, our review is governed by Rule 84.13(d) and the principles articulated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This Court must affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Salem United Methodist Church v. Bottorff, 138 S.W.3d 788, 789-90 (Mo.App.2004). The trial court’s ruling on questions of law is reviewed de novo. Strader v. Progressive Ins., 230 S.W.3d 621, 623 (Mo.App.2007). “We review the evidence and all reasonable inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences.” Arndt v. Beardsley, 102 S.W.3d 572, 574 (Mo.App.2003). We defer to the trial court’s determination of witness credibility and recognize that the court is free to accept or reject all, part or none of the testimony presented. Christian Health Care of Springfield West Park, Inc. v. Little, 145 S.W.3d 44, 48 (Mo.App.2004). Our summary of the evidence, which is set forth below, has been prepared in accordance with these principles.

Ronald and Sharon were married in 1986. During their marriage, they acquired a tract of real estate located on Bunker Hill Road in Strafford, Missouri (the Strafford property). There were times during the marriage when the couple separated. Just before one such separation in November 1998, Ronald asked Sharon to sign a quitclaim deed to the Strafford property. In relevant part, this deed stated:

QUITCLAIM DEED

THIS INDENTURE, Made on the 13th day of November, 1998 by and between Sharon E. Blair, wife of Ronald Steven Blair of the County of Webster and State of Missouri Party of the First Part and Ronald Steven Blair, husband of Sharon E. Blair of the County of Webster and State of Missouri party of the Second Part [mailing address omitted] WITNESSETH, That the said party of the First Part, in consideration of the sum of Ten and No/ 100 DOLLARS to her paid by the said party of the Second Part, the receipt of which is hereby acknowledged, do by these presents remise, Release and forever Quit-Claim, unto the said party of the Second part, the following described Lots, Tracts or Parcels of Land, lying, being and situate in the County of Webster and State of Missouri to wit:
[legal description of the Strafford property omitted].
TO HAVE AND TO HOLD the same, with all the rights, immunities, privileges and appurtenances thereto belonging unto the said party of the Second Part, and his heirs and assigns FOREVER, so that neither the said party of the First Part, nor her heirs or any other person or persons for her or in her name or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises or any part thereof, but she and everyone for her shall, by these presents, be excluded and forever barred.
IN WITNESS WHEREOF, the said party of the first part has hereunto set her hand and seal the day and year first above written.

This deed was signed by Sharon on November 13, 1998 and recorded three days later.

Ronald and Sharon separated for the last time around January 2005. For the next 30 months, the couple lived apart. Sharon had no intention of returning to live with Ronald. From approximately July 2005 through July 2007, Sharon was dating and having sexual relations with another man.

Ronald died intestate on July 7, 2007. In August 2007, Sharon filed an application requesting the issuance of letters of administration to her as surviving spouse. That same month, the court granted the request and issued the letters. In November 2007, the Strafford property was listed as an asset of Ronald’s estate in an inventory that Sharon filed in her capacity as personal representative.

In January 2008, Sharon filed: (1) a petition asking that certain exempt personal property be set over to her as surviving spouse; and (2) an application for a $25,000 family allowance paid from the estate to her as surviving spouse. In the latter application, Sharon stated “that she and decedent were married at the time of his death and that she had a marital interest in the real estate inventoried in the estate.... ” Sharon requested the trial court to set over to her the Strafford property as her sole property and to award her a “fee simple interest” in the real estate.

In response, Sean filed a claim and a request for a declaratory judgment. Sean alleged that, by executing the quitclaim deed, Sharon had waived and relinquished all rights in the Strafford property, including any rights of inheritance and statutory rights with respect to that land. Sean further alleged that the Strafford property became his upon Ronald’s death, as provided by law. The prayer for relief requested the trial court to declare that the Strafford property belonged to Sean and that no one else, including Sharon, had any interest in the property.

In June 2008, the trial court held an evidentiary hearing on Sharon’s statutory claims and Sean’s request for declaratory relief. With respect to Sharon’s statutory claims, the court found these were barred by § 474.140 RSMo Cum.Supp. (2007) because Sharon had been voluntarily separated from Ronald and living in a continuous state of adultery with another man for two and one-half years prior to Ronald’s death. With respect to Sean’s request for declaratory relief, the court found that the quitclaim deed to the Strafford property did not extinguish the tenancy by the entirety and that the property passed to Sharon by operation of law upon Ronald’s death. The court ordered that the Straf-ford property be stricken from the estate’s inventory and appraisement, and that the order be recorded to establish that Sharon was the proper titleholder of the Strafford property. In February 2009, the court approved the final settlement and entered a decree of distribution. Sean appealed and presents two points of alleged error.

As a preliminary matter, we first must address Sharon’s motion to dismiss this appeal. Sharon contends that Sean was obligated to appeal from the June 2008 order and, therefore, his notice of appeal was untimely. This argument has no merit. While Sean could have permissively appealed from the order pursuant to § 472.160, he was not required to do so. In re Estate of Straszynski, 265 S.W.3d 394, 396 (Mo.App.2008). Sean retained the right to appeal from the decree of final distribution. Id.; In re Estate of Givens, 234 S.W.3d 519, 521 (Mo.App.2007). Because he did so in a timely fashion, the motion to dismiss is denied.

In Sean’s first point, he contends the trial court erred in removing the Straf-ford property from Ronald’s estate. Sean argues that this ruling was a misapplication of the law because the parties did not question ownership of the property or seek to have it removed from the estate. Sean asserts the trial court decided an issue that had not been pled and cites Brock v. Blackwood, 143 S.W.3d 47 (Mo.App.2004), to support his request for reversal.

Brock does not support Sean’s argument. There, one count of the plaintiffs’ petition sought to terminate their Gift-trusts early pursuant to § 456.590.2. Id. at 52. In ruling on that count, the trial court went beyond the early termination issue and decided all of the Gifttrusts were a nullity because they had been improperly created. Id. at 53. The western district of this Court held that the trial court’s ruling was erroneous because the plaintiffs’ petition did not allege any facts in support of voiding the Gifttrust ab initio. Id. at 61.

The case at bar is distinguishable. Sharon’s application for a family allowance specifically pled that she and Ronald were married when he died and that Sharon had a “marital interest” in the Strafford property. She asked that the property be awarded to her as her sole property. As Ronald’s heir, Sean had a right to request a declaration of rights or legal relations with respect to any question arising in the administration of Ronald’s estate. § 527.040. He filed a petition asking for just such relief. The petition alleged that, by executing the quitclaim deed, Sharon had waived and relinquished all rights in the Strafford property. A copy of the quitclaim deed was attached to the petition. Sean further alleged that the Straf-ford property became his upon Ronald’s death, as provided by law. The prayer for relief requested the trial court to declare that the Strafford property belonged to Sean and that no one else, including Sharon, had any interest in the property. Thus, Sean specifically placed the issue of who owned the Strafford property before the trial court. The facts necessary to make that determination came directly from Sean’s petition, in the form of the quitclaim deed. In order to determine whether Sharon had relinquished all interest in the Strafford property by executing the quitclaim deed, the trial court had to decide what interest, if any, the deed conveyed to Ronald. Point I is denied.

In Point II, Sean contends the trial court misapplied the law by deciding that the quitclaim deed executed by Sharon was ineffective to vest sole ownership of the property in Ronald. Sean argues that the quitclaim deed was effective to destroy the tenancy by the entirety and vest Ronald with the entire estate. He cites Clark v. Clark, 644 A.2d 449, 453 (D.C.App.1994), and Donvito v. Criswell, 1 Ohio App.3d 53, 439 N.E.2d 467, 474 (1982), to support his argument.

Although Sean accurately describes the holdings in these out-of-state cases, the principles applied therein are incompatible with controlling Missouri law. “The distinctive characteristic of an estate by the entirety is that it is deemed to be owned by a single entity, the marital community.” U.S. Fidelity and Guar. Co. v. Hiles, 670 S.W.2d 134, 137 (Mo.App.1984). In other words, “each spouse is seized of the whole or entirety and not of a share, moiety or divisible part.” Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395, 398 (1947). For this reason, “neither spouse has any right, title or interest which may be conveyed, encumbered or devised by his or her sole act....” Id. (italics in original); see also WlLLARD L. ECKHARDT, POSSESSORY ESTATES, Future Interests and Conveyances in Missouri § 40 (West 1986) (neither spouse can convey any interest held by the entirety unless the other spouse joins in the conveyance); 4A Richard R. Powell, The Law of Real Property ¶ 622[4] (1st ed. 1949 & Supp.1992) (both spouses acting in concert can convey their tenancy by the entirety, but neither acting alone may do so).

In the case at bar, Sharon was the only grantor named in the quitclaim deed. “A deed by only one of two tenants by the entirety conveys nothing.” Ethridge v. Tierone Bank, 226 S.W.3d 127, 132 (Mo. banc 2007). As the trial court correctly held, a deed by one of the tenants alone is void. Austin & Bass Builders, Inc. v. Lewis, 359 S.W.2d 711, 714 (Mo. banc 1962); Mahen v. Ruhr, 293 Mo. 500, 240 S.W. 164, 166 (1922). Point II is denied.

The judgment of the trial court is affirmed.

BARNEY and BURRELL, JJ., concur.

      . Because all three persons mentioned in this opinion share the same surname, we will refer to each by his or her given name. We do so for purposes of clarity and intend no disrespect.

      . All references to rules are to the Missouri Court Rules (2009). All references to statutes are to RSMo (2000) unless otherwise specified.

      . If both spouses are named as grantors in the conveyance, Missouri law does authorize real property jointly owned as tenants by the entirety to be conveyed to one spouse as his or her separate property. See § 442.025.2 (authorizing two married persons to convey real estate by a conveyance naming one of them as grantee so as to create separate ownership); Townsend v. Townsend, 708 S.W.2d 646, 650 (Mo. banc 1986).


source: Caselaw Access Project

author: ROY L. RICHTER, J.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James TAYLOR, Appellant.
    No. ED 93334.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 4, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 23, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Brocea Smith, St. Louis, MO, for Appellant.
    Christopher Koster, Terrence M. Mes-sonnier, Jefferson City, MO, for Respondent.
   ROY L. RICHTER, J.

James Taylor (“Defendant”) appeals from the judgment entered on a jury verdict finding him guilty of forcible rape, in violation of section 566.030 RSMo, kidnapping, in violation of section 565.110, and first-degree assault, in violation of section 565.050. Finding no error, we affirm.

I. BACKGROUND

On May 24, 2007, V.W. was in the process of moving out of her eighth floor apartment because police had ordered her building to close. She stopped packing in order to buy liquor at a convenience store, and encountered Defendant on her way home. The two knew each other in passing from the neighborhood, and V.W. asked Defendant to return to her apartment and help her move a desk. Defendant had been banned from V.W.’s building, so V.W. snuck him in the back door to avoid the 24-hour police surveillance.

Once in her apartment, V.W. began drinking the brandy she had purchased at the store. Defendant told her to take her clothes off. V.W. testified that Defendant proceeded to punch her in the head repeatedly and strangle her, causing her to suffer broken ribs and teeth and extensive hemorrhaging. According to V.W.’s testimony, Defendant raped her and tried to have oral and anal sex with her, but was unable to climax. When V.W. lost control of her bowels as a result of the beatings, she testified that Defendant would not let her use the bathroom. V.W. also testified that Defendant made her lick his chest, and threatened her with a knife. She eventually passed out and awoke later to find Defendant sleeping on the couch.

V.W. crawled to the door and made her way to the lobby via the fourth floor elevator. She made contact with Officer Ernest Greenlee in the lobby at approximately 6:30 a.m. Officer Greenlee observed blood on V.W.’s face and requested an ambulance. When more officers arrived at the scene, they went to V.W.’s apartment and found Defendant sleeping naked on the floor. The officers seized a hunting knife and box cutter from V.W.’s apartment, and took multiple swabs from Defendant.

V.W. went to the hospital where emergency room nurse Kathryn Howard (“Howard”) performed a sexual assault exam. During the exam, Howard noticed bleeding and abrasions on the inside of V.W.’s vagina in addition to other genital trauma. Howard observed bleeding in V.W.’s eyes that was consistent with strangulation.

The State charged Defendant with forcible rape and armed criminal action, two counts of forcible sodomy, kidnapping, and the class A felony of first-degree assault. The jury returned guilty verdicts for forcible rape, kidnapping, and the lesser-included offense of the class B felony of first-degree assault. The jury found Defendant not guilty of the two counts of forcible sodomy and armed criminal action. Defendant appeals.

II. DISCUSSION

In his first point on appeal, Defendant argues that the trial court erred in overruling his motion for judgment of acquittal as to kidnapping because there was insufficient evidence to support the charge. We disagree.

We review the denial of a motion for acquittal to determine if the state adduced sufficient evidence to make a submissible case. State v. Brock, 113 S.W.3d 227, 231 (Mo.App. E.D.2003). In reviewing the sufficiency of the evidence to support the jury’s verdict, we look to the elements of the crime and consider each in turn. State v. Thomas, 75 S.W.3d 788, 790 (Mo.App. E.D.2002). We must view the evidence in the light most favorable to the state, and grant the state all reasonable inferences therefrom. Id. This Court disregards contrary inferences, “unless they are such a natural and logical extension of the evidence that a reasonable juror would be unable to disregard them.” Id.

Section 565.110 provides, in pertinent part, that “[a] person commits the crime of kidnapping if he or she ... unlawfully confines another without his or her consent for a substantial period, for the purpose of ... [i]nflicting physical injury on or terrorizing the victim or another.”

Defendant argues that a kidnapping conviction cannot stand when the victim’s confinement is incidental to another offense. According to Defendant, his confining V.W. against her will was incidental to the offenses of assault and rape, and therefore he did not commit the independent crime of kidnapping.

“The offense of kidnapping should not be used in situations where the movement or confinement is merely incidental to another offense.” State v. Williams, 860 S.W.2d 364, 366 (Mo.App. E.D.1993). To determine whether a defendant’s moving and confining his victim is incidental to another offense or is sufficient to constitute the offense of kidnapping, “we look to see if there was any increased risk of harm or danger to the victim from the movement or confinement that was not present as the result of the other offense.” Id. “Increased risk or harm or danger may arise either from the movement itself or from the potential of more serious criminal activity because of the remoteness or privacy of the area to which the victim was moved.” Id. (quoting State v. Jackson, 703 S.W.2d 30, 33 (Mo.App. E.D.1985)).

In State v. Brock, 113 S.W.3d 227 (Mo.App. E.D.2003), our Court considered and rejected the same argument that Defendant raises in this point. The Brock defendant had prevented his wife from leaving the apartment, and then punched, beat, and choked her. Id. at 229. He argued that the State presented insufficient evidence to support his kidnapping conviction because his confining the victim was merely incidental to his assaulting her. Id. at 231. This Court disagreed. We stated that, while the state must prove an increased risk or harm or danger to the victim because of the movement or confinement, the increased risk need not be inherent in the movement itself. Id. Rather, “[t]he additional risk necessary to sustain a conviction of kidnapping may be established by showing that the remoteness or privacy of the area to which the victim was confined created the potential of more serious criminal activity.” Id. The Brock Court found that the victim’s confinement in the apartment increased the risk and danger to her because it made her escape more difficult, and the defendant’s criminal activity less visible. Id. at 232.

Similarly, in State v. Shelton, 78 S.W.3d 200 (Mo.App. W.D.2002), the Western District held that the defendant’s confining the victim to a hotel room before raping and assaulting her increased the risk of harm because it made the victim’s escape more difficult and the defendant’s criminal activity more difficult to detect. Id. at 204. See also Williams, 860 S.W.2d at 366 (upholding defendant’s kidnapping and attempted rape convictions where defendant confined the victim to her car before attempting to rape her).

Like Brock, Shelton, and Williams, the facts of this case are such that Defendant’s confining V.W. to her apartment increased the risk of harm to her. Defendant confined V.W. in her apartment against her will, and beat, strangled, and raped her for approximately two hours. V.W. testified that Defendant would not allow her to use the bathroom. Moreover, V.W.’s apartment building had been recently ordered to close, and V.W. was one of few people still living there. According to V.W.’s testimony, she was “literally the last person in that building on the eighth floor.” The isolated circumstances in which Defendant held V.W., therefore, increased the risk of harm to her and allowed Defendant’s criminal behavior to go unnoticed.

Defendant’s confining V.W. to her apartment likewise made her escape more difficult. V.W. testified that she ultimately escaped by crawling down the fire stairs and taking the fourth floor elevator to the lobby; V.W. feared that Defendant might hear the elevator ding if she called it to her floor. Defendant’s confining V.W. in her apartment increased the risk of harm or danger to her, and therefore there was sufficient evidence to support the jury’s finding Defendant guilty of kidnapping. Point one is denied.

In his second point on appeal, Defendant argues that the trial court erred in overruling his objection to the State’s direct examination of V.W. Defendant argues that the State’s leading questions provided V.W. with the answers to support the elements of forcible rape, which otherwise would have been unproven. We disagree.

Whether to allow leading questions in the examination of a witness is within the sound discretion of the trial court. King v. Copp Trucking, Inc., 853 S.W.2d 304, 309 (Mo.App. W.D.1993). We will overturn their decision only if it constituted an abuse of discretion and prejudiced the defendant. State v. Miller, 208 S.W.3d 284, 289 (Mo.App. W.D.2006).

V.W. initially testified that Defendant did all sorts of sexual things to her, but that she could not be penetrated. Subsequently, however, the following exchange occurred between the State and V.W.:

Prosecutor: [V.W.], you told us about him putting his penis in your vagina.
Defense: Objection. Leading.
The Court: That will be overruled.
V.W.: He did all different thing you can think of sexual. The intercourse, the sodomies, and I think he even tried to have anal sodomy.

The State returned to the issue later in V.W.’s testimony:

Prosecutor: I want to go back and cover something that I realized in listening to you that I may have missed. You talked about way back in the beginning when you first took the stand, you were telling us about how he was trying to have sex with you. Did that happen?
V.W.: Yeah.
Prosecutor: Okay. So he was able to penetrate you?
V.W.: Yes.
Defense: Objection. Leading.
The Court: That will be overruled.

Defendant argues that the State’s leading questions prejudiced him because they enabled V.W. to supply the elements for forcible rape.

We need not decide whether the trial court abused its discretion in allowing the questions because, even assuming they were leading, Defendant cannot prove they prejudiced him. Howard, the emergency room nurse who performed a sexual assault exam on V.W., testified that V.W. exhibited genital trauma. V.W.’s genital trauma, according to Howard, included bleeding and abrasions inside her vagina as well as on her cervix. Howard further testified that V.W. experienced pain when Howard inserted the speculum in her vagina. Howard’s testimony provided sufficient evidence for the jury to find that Defendant forcibly raped V.W. Defendant cannot prove that the prosecutor’s questions prejudiced him, and therefore point two is denied.

In his third point on appeal, Defendant argues that the trial court erred in overruling his objection to the State’s line of questioning during voir dire regarding the panel’s ability to convict Defendant on the basis of eyewitness testimony alone. Defendant argues that the State’s question was misleading in that the State intended to present physical evidence, including DNA, photographs, and medical evidence. We disagree.

The trial court is vested with wide discretion in conducting voir dire. State v. Miller, 162 S.W.3d 7, 17 (Mo.App. E.D. 2005). We review the trial court’s voir dire rulings for an abuse of discretion. Id. When a party claims that the trial court abused its discretion regarding voir dire, that party has the burden to show a “real probability” that he was prejudiced by the abuse. Id.

During voir dire, the prosecutor questioned the jury panel about their ability to return a guilty verdict without physical evidence and based solely on testimonial evidence. The inquiry proceeded as follows:

Prosecutor: Anyone here feel that if they’re not given physical evidence, no matter what the testimonial evidence is, they couldn’t consider a guilty verdict?
Defense: Judge, can we approach on this? [... ] Judge, in this particular case, this question is misleading because there is physical evidence. There’s DNA evidence, there’s photographs, there’s items seized at the scene.
The Court: So how is the question misleading?
Defense: It suggests that no physical evidence will be presented. Testimony alone. This is not a testimony alone ease.
The Court: Is there physical evidence?
Prosecutor: I do intend to present physical evidence....

Defendant argues that the prosecutor’s line of questioning was misleading, confusing, and irrelevant. He asserts that the trial court should not have permitted the State to ask jurors whether they could base their verdict on only eyewitness testimony when the State clearly intended to present physical evidence at multiple stages of the trial.

Defendant is correct in that the State introduced physical evidence at trial, including DNA profiling. The State did not introduce physical evidence, however, to support its forcible sodomy charges. Nor did it introduce physical evidence in support of the armed criminal action charge, because the DNA recovered on the hunting knife was inconclusive as to Defendant. Thus, the question of whether the jury could return a guilty verdict on the basis of testimony alone was not confusing or misleading because the State did not introduce physical evidence to support every aspect of its case. In fact, we note that the jury ultimately acquitted Defendant only of those charges for which the State presented no physical evidence — the two forcible sodomy and armed criminal action counts. Therefore, whether potential jurors could convict based on testimonial evidence alone proved to be a pertinent question.

Moreover, it is well-established that “[cjounsel is afforded much latitude in probing the venire panel to determine preconceived prejudices which would prevent them from following the court’s instructions.” State v. Nicklasson, 967 S.W.2d 596, 608 (Mo. banc 1998); State v. Bullock, 179 S.W.3d 413, 417 (Mo.App. S.D.2005); State v. Dunn, 7 S.W.3d 427, 432 (Mo.App. W.D.1999); State v. Crawford, 904 S.W.2d 402, 408 (Mo.App. E.D.1995). The transcript clearly reveals that the prosecutor aimed to establish that the jury could follow the court’s instruction to determine whether Defendant was guilty beyond a reasonable doubt, regardless of the form of evidence presented. Established principles permit such questioning. Point three is denied.

III. CONCLUSION

The judgment of the trial court is affirmed.

KENNETH M. ROMINES, C.J., and GARY M. GAERTNER, JR., J„ concur.

      . Unless otherwise noted, all statutory refer-enees are to RSMo 2000.

      . Given the prevalence of television shows such as CSI and Law and Order, a trend exists wherein juries expect the State to present physical evidence on every issue. The trial court does not err in allowing the State to ferret out such juror biases during voir dire.


author: PER CURIAM.

text:
    RX RECALLS, INC. and Mogil Corp., Plaintiffs/Respondents, v. DEVOS LTD., d/b/a Guaranteed Sales and d/b/a Guaranteed Returns, GRX Holdings, LLC, and Dean Volkes, Defendants/Appellants.
    No. ED 92887.
    Missouri Court of Appeals, Eastern District.
    May 4, 2010.
    Application for Transfer to Supreme Court Denied June 8, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Fernando Bermudez, Green Jacobson, P.C., Clayton, MO, for appellants.
    Lawrence C. Friedman, Matthew J. Landwehr, St. Louis, MO, for respondents.
    Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   PER CURIAM.

The trial court entered a money judgment on a jury verdict in plaintiffs’ favor on plaintiffs’ joint and individual claims against defendants to recover damages for breach of an asset purchase agreement and promissory note defaults and other claims arising out of the sale of plaintiffs’ business assets to defendants. It also granted plaintiffs’ motion for directed verdict on the fraud count in defendants’ counterclaim and struck defendants’ affirmative defense based on fraud in the inducement. Defendants appeal. They assign error to the verdict-directing instruction on plaintiffs’ count seeking damages for breach of the Asset Purchase Agreement. They also claim the trial court erred in entering the directed verdict on their counterclaim and striking their affirmative defense. We affirm.

With respect to defendants’ claims on appeal, no error of law appears. An opinion reciting the detailed facts and restating the principles of law relating to the points on appeal would have no precedential value. However, we have furnished the parties with a memorandum for their information only setting forth the reasons for our affirmance.

Plaintiffs have moved for costs, attorney’s fees, and expenses on appeal. “If a contract provides the payment of attorney’s fees and expenses incurred in the enforcement of a contract provision, the trial court must comply with the terms of the contract and award them to the prevailing party.” Clean the Uniform Co. v. Magic Touch Cleaning, 300 S.W.3d 602, 612 (Mo.App.2009). We may award attorney’s fees on appeal if they are authorized by the written agreement that is the subject of the issues on appeal. Id. Here, the Asset Purchase Agreement provided:

33. Prevailing Party. The prevailing party who receives a judgment arising out of litigation in connection with a breach or default under this Agreement shall be entitled to recover from the other party reasonable attorneys’ fees and costs.

Further, each promissory note provided:

In the event of default, the undersigned, jointly and severally, agree to pay Holder’s costs of collection, including, without limit, reasonable attorneys’ fees and expenses and court costs, regardless of whether or not litigation is commenced, including attorneys’ fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection costs. Such costs shall be added to the balance of principal and interest then due and shall be deemed secured by the Collateral or any security agreement.

All of the issues on appeal arose out of the litigation to recover damages for the breach of the Asset Purchase Agreement and the note defaults, and defenses and counterclaims therein. Defendants’ challenge to plaintiffs’ motion is limited to two specific items — time billed for tax advice and time billed for addressing the finality of the judgment. In addition, they generally challenge the total request as excessive in comparison with defendants’ own counsel’s fees.

We will address only the argument about the finality of the judgment because it involves this court’s own files. Defendants claim that they should not have to pay for plaintiffs’ counsel’s time in responding to this court’s request about the finality of the judgment because there was no final judgment on several counts until plaintiffs later dismissed those counts. This argument has no merit because it ignores the facts that defendants are the appellants, and that defendants filed their notice of appeal before the judgment was final. As a result of defendants’ premature notice, we issued an order directing defendants to file a memorandum addressing whether the judgment was final and therefore appealable. The time plaintiffs’ counsel spent on this matter would be attributable to attorney’s fees incurred on appeal in this situation.

The motion for attorney’s fees and costs is sustained. The trial court is better equipped than this court to hear evidence and argument on the remaining issues in plaintiffs’ motion and make a determination of the reasonableness of the requested costs, fees, and expenses. Therefore, we remand to the trial court to conduct a hearing to determine and award reasonable costs, attorney’s fees, and expenses incurred on appeal by plaintiffs.

Conclusion

The judgment of the trial court is affirmed pursuant to Rule 84.16(b). The case is remanded to the trial court with directions to conduct a hearing to determine the reasonableness of the costs, attorney’s fees, and expenses incurred on appeal by plaintiffs, and to enter judgment accordingly.


text:
    Michael E. ESTEP, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93608.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 11, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 23, 2010.
    Application for Transfer Denied Aug. 31, 2010.
    Gwenda Renee’ Robinson, District Defender, Saint Louis, MO, for Appellant.
    Chris Koster, Evan J. Buchheim, Attorney General, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Michael E. Estep appeals the judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We find that the motion court’s findings of fact and conclusions of law are not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 84.16(b).


text:
    George R. NOORY, Respondent, v. Gini G. GRACE, Appellant.
    No. ED 93367.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 11, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.
    Application for Transfer Denied Aug. 31, 2010.
    Gini G. Grace, Symsonia, KY, pro se.
    David M. Fedder, Hannah L. Preston, St. Louis, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, and GARY M. GAERTNER, JR., JJ.
   ORDER

PER CURIAM.

Gini G. Grace (hereinafter, “Grace”) appeals pro se from the trial court’s judgment entering a full order of protection against her pursuant to the Adult Abuse Act, Sections 455.010 through 455.090 RSMo (Cum.Supp.2006) for stalking George R. Noory (hereinafter, “Noory”). Grace raises five points on appeal. Grace’s first two points claim the trial court abused its discretion in failing to grant her a continuance because she was not afforded a reasonable opportunity to defend herself and her oral motion for a continuance was proper. In her third point, Grace challenges the sufficiency of the evidence to sustain the trial court’s judgment. In her fourth point, Grace claims the trial court abused its discretion when it permitted Noory to give perjured testimony and subsequently relied upon that testimony as a basis for its judgment. Finally, Grace argues the trial court failed to designate the relationship of the parties on the judgment, rendering it invalid. Both parties filed motions seeking sanctions on appeal, which are denied.

We have reviewed the briefs of the parties, the legal file, and transcript on appeal. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision. The trial court’s judgment is affirmed pursuant to Rule 84.16(b).


text:
    Bryan L. DICKERSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93107.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 11, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 23, 2010.
    Application for Transfer Denied Aug. 31, 2010.
    Scott Thompson, Saint Louis, MO, for Appellant.
    Chris Foster, Attorney General, Jayne T. Woods, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Bryan L. Dickerson appeals the judgment denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Dickerson argues he was denied his right to effective assistance of both trial and appellate counsel. We find the motion court’s findings and conclusions are not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the motion court is affirmed under Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Quintin GRAY, Appellant.
    No. ED 93049.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 11, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 23, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Timothy Forneris, Assistant Public Defender, Office of the Missouri Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, John M. Reeves, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Quintín Gray (Defendant) appeals the judgment entered by the Circuit Court of the City of St. Louis, following his conviction by a jury, of unlawful use of a weapon, in violation of Section 571.030, RSMo (2000). Defendant was sentenced, as a prior offender, to four years of imprisonment. Finding no manifest injustice or miscarriage of justice, we affirm.

We have reviewed the briefs of the parties and the record on appeal and find Defendant is entitled to no relief on appeal. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision.

We affirm the trial court’s judgment pursuant to Rule 30.25(b).


text:
    Lonnie D. SNELLING, Plaintiff/Appellant, v. CAMBRIDGE INTEGRATED SERVICES GROUP, INC., K-Mart Corporation, United Pet Group, Inc., and Eight in One Pet Products, Inc., Defendants/Respondents.
    No. ED 92831.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 11, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 14, 2010.
    Application for Transfer Denied Aug. 31, 2010.
    Lonnie Snelling, St. Louis, MO, pro se.
    Katherine C. Lemley, Stephen R. Casey, Bryan Cave LLP, St. Louis, MO for Cambridge Integrated Services Group, Inc.
    Jason Corray, William Berry and Associates Collinsville, IL, for United Pet Group, Inc.
    Donald L. O’Keefe, Margaret L. Moore, Rabbitt, Pitzer & Snodgrass, PC, St. Louis, MO, for K-Mart Corporation.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Lonnie D. Snelling appeals from the orders and judgments entered on June 17, 2008, July 31, 2008, and February 17, 2009, dismissing his claims against K-Mart Corporation, Cambridge Integrated Services Group, Inc., and United Pet Group, Inc., the parent company of Eight In One Pet Products, Inc., respectively. No error of law appears. An extended opinion would have no precedential value. We affirm the trial court’s rulings under Rule 84.16(b).


author: DON E. BURRELL, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Randy K. BELCHER, Defendant-Appellant.
    No. SD 29698.
    Missouri Court of Appeals, Southern District, Division One.
    May 13, 2010.
    Rehearing Denied June 8, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Randy K. Belcher, Bowling Green, MO, acting Pro Se.
    Chris Koster, Attorney General, and Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
   DON E. BURRELL, Judge.

Randy Belcher (“Movant”) was convicted of kidnapping, a violation of section 565.110, first-degree assault, a violation of section 565.050, and armed criminal action, a violation of section 571.015, for events that occurred in 1987. Movant was thereafter sentenced to serve consecutive terms of imprisonment of fifteen, fifteen, and four hundred years, respectively. Movant now appeals the circuit court’s denial of his pro se motion seeking post-conviction DNA testing pursuant to section 547.035. We affirm the circuit court’s ruling.

Facts

This court affirmed Movant’s convictions on direct appeal in State v. Belcher, 805 S.W.2d 245 (Mo.App. S.D.1991). We draw much of our recitation of the relevant background facts from that opinion. In September of 1987, Movant asked his fourteen-year-old neighbor (“Victim”) to come to his house and help him with a plumbing problem. After she entered his home, Movant locked the door and told Victim that he had lied about having a plumbing problem. Id. at 247. Movant kept Victim in his house until Movant’s father returned. Together, Movant and his father then threatened Victim and took her to a motel room. Id. Once at the motel, Mov-ant forced Victim to have intercourse and oral sex with him. Id. Movant’s father also raped Victim twice. Id. The next morning, Movant and his father took Victim to a river, pushed her in, sprayed her in the face with something, struck her with a lead pipe, and shot at her. Id. at 247-48. Victim was able to swim away from her attackers and made it to a house along the river, where someone helped her and called the police. Id.

At Movant’s trial, the State adduced evidence from forensic scientist Frank Booth (“Mr. Booth”), a serologist and trace evidence examiner for the Kansas City Police Department. Mr. Booth testified that he had tested for the State several articles gathered from Victim, the motel room, and Movant. These articles included State’s Exhibits 403 and 404: a pillow case and sheet taken from the bed in the motel room. Serological tests on the pillow case and sheet revealed a B antigenic marker, along with a smaller amount of A antigenic material. In Mr. Booth’s opinion, there was too little of the A antigenic material as compared to the amount of B antigenic material to indicate an AB blood type. Instead, Mr. Booth concluded that the materials tested contained a mixture of fluids from two different individuals. Mr. Booth’s testimony was that the blood-grouping evidence narrowed the pool of possible suspects from the 1,000,000 people then residing in the Kansas City Metropolitan area to a group of 3,000 people in that area, from which Movant could not be excluded.

At his trial, Movant apparently called a Dr. Su to testify on his behalf. Dr. Su reviewed the results of the testing done by Mr. Booth and testified that the analysis of fluid stains on the motel’s bed sheets was based only on an “acid phosphatase test,” and that she would not base her conclusions merely on that test. Rather, Dr. Su testified that the fluid should have been examined for sperm cells and P-30 protein.

Dr. Su, in reading the State’s report, noted it concluded that “[b]ody hairs from item one[-]dash[-]one match the arm and leg hair of [Movant]” but also indicated that “there was body hair that could not be matched to the submitted standard of [Movant].” Dr. Su stated that a match of body hair “is not as significant as if you have the match or non[-]match of the pubic or head hairs.” Dr. Su stated that this is because head hairs and pubic hairs have additional physical characteristics that are easier to compare with known samples. Furthermore, she stated that the eleven hairs collected as a standard from Movant were not enough to comprise a representative sample. As to comparing the specific hairs, Dr. Su stated that she didn’t “have actual hair samples or [her] notes to review and to examine so [she] cannot offer [her] opinions.”

In 2006, Movant filed his motion for post-conviction DNA testing with the circuit court. When the circuit court did not rule on his motion, Movant filed a motion for judgment by default and, subsequently, a petition for writ of mandamus with this court. After this court issued an order for the circuit court to show cause as to why it had not ruled on Movant’s motion, the circuit court issued findings of fact and conclusions of law in an order denying Movant relief. The circuit court (hereafter referred to as “the motion court”) indicated it had denied Movant’s request for post-conviction DNA testing because: 1) the identity of the perpetrator had not been at issue in Movant’s trial; 2) there was no reasonable probability that the result of Movant’s trial would have been different if the jury had been presented with exculpatory DNA test results; and 3) the evidence was not secured in relation to the crime. Movant now appeals the motion court’s denial of his motion seeking post-conviction DNA testing.

Analysis

Movant’s sole point on appeal alleges the motion court erred in denying his motion because it “properly pleaded facts which showed [he] was entitled to relief[.]” Mov-ant alleges his identity was at issue, and “whether [Movant] knew [Victim] is irrelevant and does not disqualify [Movant] from DNA testing, in that [Movant] claimed he did not commit the acts alleged....” Mov-ant further alleges the evidence he seeks to have tested was secured in relation to the crime, and that there is a reasonable probability that he would have been exonerated if that evidence had been tested.

Standard of Review

“Denial of a post-conviction motion for DNA testing is reviewed to determine whether the motion court’s findings of fact and conclusions of law were clearly erroneous.” State v. Ruff, 256 S.W.3d 55, 56 (Mo. banc 2008). “The motion court’s findings and conclusions are clearly erroneous only if, after review of the record, ‘the appellate court is left with the definite and firm impression that a mistake has been made.’ ” Id. (quoting Weeks v. State, 140 S.W.Sd 39, 44 (Mo. banc 2004)). When a motion for DNA testing is overruled without a hearing, we review the lower court’s determination for clear error. Id. In reviewing the adequacy of Movant’s pleading, “the court assumes all allegations are true and liberally grants all reasonable inferences therefrom.” Id. at 57 (citing Richardson v. Richardson, 218 S.W.3d 426, 428 (Mo. banc 2007)).

Statutory Requirements for Post-Conviction DNA Testing

Section 547.035.1 provides a mechanism for any person “in the custody of the department of corrections claiming that forensic DNA testing will demonstrate the person’s innocence of the crime for which the person is in custody” to request such testing.

The motion must allege facts under oath demonstrating that:

(1) there is evidence upon which DNA testing can be conducted; and
(2) The evidence was secured in relation to the crime; and
(3) The evidence was not previously tested by the movant because:
(a) The technology for the testing was not reasonably available to the movant at the time of the trial;
(4) Identity was an issue in the trial; and
(5) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing.

Section 547.035.2.

“If the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief, a hearing shall not be held.” Section 547.035.6. Because all of the elements set forth in the statute are connected by the word “and,” a movant must show that all of them have been met in his or her case, and we will affirm the motion court’s denial of relief if the record conclusively shows that any one of them cannot be met. In the case at bar, elements 1, 2, and 3 are not at issue — there is evidence upon which DNA testing can be conducted, the State concedes in its brief that the evidence was secured in relation to the crime because it was part of “a continuing criminal enterprise,” and the technology required for the testing was not reasonably available to Movant at the time of his trial. We will address the final two elements in order.

Identity at Issue

Movant argues his identity was at issue because he “claimed he did not commit the acts charged” and “[t]he serological evidence presented by the state failed to conclusively show [Movant] to be a perpetrator of the crimes alleged[.]”

“[T]he DNA testing statute does not require ‘mistaken identity.’ The statute requires that ‘identity be at issue’ in the trial, a broader concept than ‘mistaken identity.’” Ruff, 256 S.W.3d at 57. “In the context of the statute, ‘mistaken identity’ occurs when the defendant alleges that the crime in question was committed by another person.” Id. “The phrase ‘identity at issue’ encompasses ‘mistaken identity,’ but it also includes all cases in which the defendant claims that he did not commit the acts alleged — as opposed to cases where the defendant admits his actions but puts forth an affirmative defense.” Id. (citing Weeks, 140 S.W.3d at 47). We agree with Movant that his identity was at issue during the trial because he claimed he did not commit the acts alleged and did not assert an affirmative defense.

Probability of Acquittal if DNA Evidence is Exculpatory

Movant also argues that DNA testing would reveal that his father was present with someone other than Movant during the commission of the charged crimes.

The motion court’s findings in this regard were:

Movant’s only argument on this issue is that DNA would of [sic] showed that someone else committed the rape. Mov-ant implies in his motion that if the DNA were to be tested, it would show his father was the individual who committed the rape of the victim. However, this argument fails to address the crimes which were tried in this case. The crime of rape was not charged in this ease.

The motion court concluded that, even if DNA testing revealed that Movant’s father had committed the rape, “it would further support and corroborate the testimony of [Victim]” because “she stated that both Movant and his father committed these crimes.”

In State v. Fults, 98 S.W.3d 877, 879 (Mo.App. E.D.2003), the court held that the appellant “would not be proven innocent as to his convicted crimes” even if any forensic DNA testing of fluids collected from the victim’s vagina were negative as to the appellant’s DNA. The court’s reasoning was that there was no testimony that the appellant had ejaculated in the victim’s vagina, but only in her mouth. Id. Therefore, there was no reason to expect appellant’s DNA to be located in the victim’s vagina. Id.

Here, if we assume the testing Movant desires would establish that his DNA was not present in the stains on the items taken from the motel room, it would only establish that Movant did not vaginally rape Victim at that location. However, the fact that Movant did not vaginally rape Victim at the motel would not clear him of the crimes with which he was actually charged — -kidnapping, assault, and armed criminal action. Similar to Fults, this is not the type of case where outdated methods of DNA testing were the only link between the crime and an assailant who was a stranger to the victim. In Fults, the defendant was the victim’s father. Here, Movant was Victim’s next-door neighbor.

While Defendant attempts to distance himself from the crime in his appellate brief by pointing out that there were multiple other suspects, his motion explicitly states that the other suspect was “the biological father of [Movant]” — it points to no one else. As to the crimes with which he was actually charged, exculpatory DNA evidence would not necessarily have resulted in his acquittal — Movant could still have been the second perpetrator, even if his DNA was not on the sheet and pillow case taken from the motel.

In Matney v. State, 110 S.W.3d 872 (Mo.App. S.D.2003), the court held that “blood other than the victim’s or Movant’s would not necessarily have been exculpatory as there may well have been a co-actor with Movant in the commission of the offense.” Id. at 875. Here, Victim testified that Movant was a co-actor with his father. Moreover, Movant’s own expert testified that body hairs from guests could remain in motel sheets, even after those sheets had been washed. Therefore, if the DNA testing Movant seeks had, in fact, revealed that the body hairs found in the sheets belonged to someone other than Movant, his father, or Victim, that finding would also not be exculpatory because those hairs could have belonged to a prior motel guest.

The volume of other evidence in the case adduced from witnesses who were familiar with Movant, including Victim, overwhelmingly pointed to Movant’s guilt. Even if the DNA evidence would positively exclude Movant as a donor, there is no likelihood of a different result. On this record, the motion court did not clearly err in denying Movant’s motion for post-conviction DNA testing without a hearing.

The order denying relief is affirmed.

BARNEY, J„ and BATES, P.J., Concur.

      . All references to chapters 565 and 571 are to RSMo 1986. References to section 547.035 are to RSMo, Cum.Supp.2006.

      . Movant's blood was type B; Victim's blood was type A.

      . The legal file submitted in support of Mov-ant's appeal contains only excerpts from the trial transcript. Those excerpts are also incomplete and out of chronological/numerical order. As a result, it is difficult to discern who is testifying and on whose behalf.

      . We are reading the plain language of the statute that states identity must be at issue "in the trial.” It is arguable that Movant's identity was no longer at issue once Movant admitted his participation in this crime when he pleaded guilty to an accompanying Livingston County rape charge. During that guilty plea, Movant stated, "I did, in fact, kidnap [Victim] from her home, and my father and I drove her to my house. We did, in fact, pick up some video equipment for the motel room. We did, in fact, rape her and photographed [sic] her. We did put her in a car and take her to the Missouri River, and we did, in fact, push her in the river and left her for — left her there. We did, in fact, leave and went [sic] to Humble, Texas.” Perhaps more importantly, the opening sentence of section 547.035 indicates that the purpose of the statute is to provide post-conviction DNA testing to those persons who are actually innocent of the crime they were adjudged to have committed. Section 547.035.1 (emphasis added).

      . See State v. Belcher, supra, for a more detailed discussion of the evidence proving Mov-ant’s guilt. As earlier indicated, Movant also later pleaded guilty to having raped Victim at the motel room. See footnote 4, supra.


author: DANIEL E. SCOTT, Chief Judge.

text:
    DEER RUN PROPERTIES, L.L.C., Respondent, v. KEYS TO the LAKE LODGING, CO., L.L.C., Appellant.
    No. SD 29950.
    Missouri Court of Appeals, Southern District, Division Two.
    May 18, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 9, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      Ryan C. Bridges, Curran & Sickal, Columbia, for Appellant.
    Larry R. Marshall, Columbia, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

Appellant, a real estate brokerage, challenges a summary judgment denying its claim against Respondent (Seller) for a real estate commission and ordering removal of a lien notice against Seller’s property. Appellant argues that summary judgment was inappropriate because genuine issues of material fact exist on both elements of its commission claim, and by extension, its statutory lien rights.

General Legal Principles

Missouri law regarding Seller’s liability on Appellant’s claim for a commission “is well established.” Kohn v. Cohn, 567 S.W.2d 441, 446 (Mo.App.1978). Appellant has to prove that it was the efficient or procuring cause of a sale and that an employment relationship existed between itself and Seller. Id,. Summary judgment was proper if Seller effectively negated either element. See ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 381-82 (Mo. banc 1993). Our review is de novo. Id. at 376.

Facts and Background

In September 2005, Seller listed condominiums for sale with another broker (Broker). The listing agreement, subject to Appellant’s right to sell, gave Broker a 12-month exclusive agency at a 10% commission. Broker placed the property on the local multi-list service (MLS).

The following spring, prospective buyers (Buyers) contacted Seller and agreed to buy several units. About the same time, Appellant recorded a broker’s lien notice against those units and mailed Seller a copy. Seller sued to remove the lien notice. By counterclaim, Appellant alleged that it introduced Buyers to the property and was the procuring cause of any sale, entitling Appellant to a commission, a broker’s lien, and to file its lien notice.

Seller eventually sought summary judgment. It argued that the record conclusively proved Appellant was not the procuring cause of the sale and had no contract with Seller, with either circumstance being fatal to Appellant’s claims.

Appellant responded by asserting that (1) the procuring cause issue was in genuine dispute, and (2) Appellant did not need its own contract with Seller. Rather, Appellant sought to rely on Broker’s listing agreement, which allowed Broker to use subagents and pay them a commission. Appellant claimed it was such a subagent, and as such, “would also be a party” to the listing agreement.

The trial court granted Seller summary judgment on Appellant’s counterclaim and to remove the lien notice, but did not state the legal basis for its ruling. Since our review is de novo, we will affirm the judgment on any theory supported by the record. In re Estate of Blodgett, 95 S.W.3d 79, 81 (Mo. banc 2003).

Appellant raises several points on appeal. We find the contract issue disposi-tive.

Appellant’s Contract Arguments

“In the absence of a contract of employment between the broker and the owner, the owner is not obligated to pay a commission even if the broker was the efficient cause of a sale.” Ham, 711 S.W.2d at 190; Kahn, 567 S.W.2d at 446. Nonetheless, Appellant claims summary judgment was improper because Seller “failed to establish that Appellant was not a sub-agent” of Broker in that:

1. Under the listing agreement and MLS bylaws, Broker was authorized “to cooperate with other brokers” and pay “5% of Broker’s Compensation to subagents of Broker,” with “[ejntitlement to compensation ... determined by the cooperating broker’s performance as procuring cause of the sale.”
2. By multi-listing the property, Broker made a unilateral offer of suba-gency to all other MLS brokers, which Appellant claims that it accepted by showing the property and being the procuring cause of the sale.

“As a result,” urges Appellant, “there remains a genuine issue of material fact as to whether Appellant was acting as a sub-agent” of Broker “and thereby entitled to compensation.”

Appellant’s arguments cite no case law. We find no Missouri decision on point, but other courts have rejected such arguments, including three cases from New York. In RWSP Realty, LLC v. Agusta, 42 A.D.3d 490, 840 N.Y.S.2d 608 (2007), a “buyer’s agent” found a purchaser for the defendants’ home, then sued the defendants for a commission based on the listing agreement between the defendants and their own broker. The buyer’s agent “had no cause of action against the defendants because it had no contract, express or implied, with them.” Id. at 609. “Rather, the defendants’ sole contract was with the listing broker. The plaintiffs claim for compensation for its efforts, therefore does not lie against the defendants.” Id. See also Valdina v. Martin, 47 A.D.3d 1159, 849 N.Y.S.2d 364, 365 (2008), which held:

Even viewing the evidence in a light most favorable to plaintiff as the non-moving party, the record fails to establish any contractual privity, expressed or implied, between plaintiff and the sellers [citations omitted]. Rather, the sellers’ listing agreement was with Old Ghent Realty and, according to the terms of such contract, they were obligated to pay the 6% commission only to Old Ghent Realty. “[P]laintifPs claim for compensation for its efforts, therefore, does not lie against the sellers” [citations omitted].

In Geoffrey S. Matherson & Associates, Ltd. v. Calderone, 190 Misc.2d 775, 739 N.Y.S.2d 876 (App.Term.2001), a broker showed MLS-listed property to the ultimate purchasers, yet “failed to establish that it had a contract, either express or implied,” with the sellers. Id. at 877.

Defendants’ sole agreement was with the listing broker. Said agreement allowed the listing broker to appoint other MLS member brokers as “Broker’s Agents” to assist in the sale of the premises. In addition, the MLS listing agreement was “An Exclusive Right To Sell” which required defendants to pay the listing broker “one total commission in the amount of 6%.... ” The agreement further provided that a sale by a broker who is the agent of the listing broker shall be a sale brought about by the listing broker. In view of the foregoing, it is apparent that plaintiff was acting as the “Broker’s Agent” when it showed defendants’ premises to the ultimate purchasers. Thus, plaintiff’s claim for compensation due as a result of its efforts does not lie against the sellers.

Id. Long ago, the Arkansas Supreme Court reasoned similarly:

It is also settled that, where a sale of real estate is made by an agent with the assistance of a subagent under an agreement to divide his commissions with him, such subagent is not entitled to recover the commission for the sale from the owner of the land, there being no privity of contract between them.

McCombs v. Moss, 121 Ark. 533, 181 S.W. 907, 908 (1916). Nor did the owner’s awareness of the subagency “constitute the subagent the agent of the owner so as to entitle the subagent to look to the owner for compensation.” Id. See also Jones v. Best, 134 Wash.2d 232, 950 P.2d 1, 4 (1998)(even if seller’s and buyer’s agents had a practice of sharing commissions, only seller’s agent was entitled to a commission under the listing agreement; any claim by buyer’s agent would be against seller’s agent, not the seller).

Under these cases and general contract principles, even if Broker made a unilateral offer of subagency by multi-listing the property, and Appellant accepted the offer by procuring a buyer, the resulting contract was between Appellant and Broker, with any claim for compensation lying against Broker, not Seller. We find these cases persuasive and our research has not turned up a contrary holding. Therefore, any dispute about Appellant’s subagency for Broker would not preclude summary judgment on Appellant’s commission claim against Seller.

Conclusion

Appellant’s subagency argument does not support its commission and lien claims against Seller, which fail for want of a contract between those parties. Ham, 711 S.W.2d at 190; Kohn, 567 S.W.2d at 446. Summary judgment was proper whether or not Appellant was the procuring cause of the sale; thus, we need not reach that issue or Appellant’s other points. Judgment affirmed.

LYNCH, P.J., and RAHMEYER, J„ concur.

      . See RSMo § 429.609 (2000).

      . "In the absence of a contract of employment between the broker and the owner, the owner is not obligated to pay a commission even if the broker was the efficient cause of a sale.” Kohn, 567 S.W.2d at 446, quoted in Ham v. Morris, 711 S.W.2d 187, 190 (Mo. banc 1986). This is the general rule. See Cause of Action by Real-Estate Broker to Recover Commission § 2, 27 Causes of Action 2d 703 (Supp.2009)(employment agreement essential to claim for commission; owner owes no commission absent contract with broker, even if broker was efficient cause of sale).

      . Appellant asserts, without dispute by Seller, that the Bagnell Dam Association of Realtors MLS by-laws state, in part:
      A Multiple Listing Service is a means by which authorized Participants make blanket unilateral offers of compensation to other Participants (acting as subagents, buyer agents, or in other agency or nonagency capacities defined by law); ... and is a facility for the orderly correlation and dissemination of listing information among the Participants so that they may better serve their clients and the public. Entitlement to compensation is determined by the cooperating broker's performance as procuring cause of the sale (or lease).

      . Seller also sued for slander of title, but later dismissed that claim without prejudice.

      . The record indicates that the sale closed during the lawsuit with no commission being sought by or paid to Broker.

      . The listing agreement form includes these provisions:
      BROKER COOPERATION AND COMPENSATION POLICY.
      Broker’s company policy authorizes Broker or Broker’s representatives to cooperate with other brokers acting pursuant to the following brokerage relationships, as defined by Section 339.710 R.S.Mo. (Inserting compensation amounts, percentages or "zero” below indicates such cooperation is authorized by Broker’s company policy).
      If Broker’s company policy authorizes any such cooperation, then the amount of compensation that will be offered by Broker shall be as follows (indicate a specific dollar amount, or the percentage of Broker’s Compensation [as defined in Paragraph 3 of the General Conditions below], that will be offered for each applicable cooperating brokerage relationship. Also specify if Broker's company policy regarding compensation differs as to brokers who are not members of Broker's local Board of REALTORS®; excludes particular brokers, whether or not members of Broker's local Board of REALTORS®; or is otherwise limited): $_or 5% of Broker’s Compensation to subagents of Broker (i.e., limited agents representing Owner)[.]

      . Point VII asserts that Appellant “was never put on notice” that its counterclaim was subject to a summary judgment motion. Assuming this true, arguendo, "we cannot reverse any judgment unless we find the error below materially affected the merits of the action. We are unable to make such finding in this case.” Springfield Chrysler-Plymouth, Inc, v. Harmon, 858 S.W.2d 240, 244 (Mo.App.1993); Rule 84.1303). Seller initiated the lawsuit, yet Appellant was the real "claimant” in summary judgment parlance. See ITT, 854 S.W.2d at 380-81. Appellant claimed a money commission and liened Seller’s property in aid thereof; Seller petitioned to remove the lien because Appellant could not prove its underlying commission claim; then Appellant counterclaimed for the commission. The petition and counterclaim were not merely intertwined, they were two sides of one coin on which Appellant effectively bore the burden of proof. "Procedural rules are but the means through which we seek to ensure the fair and orderly resolution of disputes and to attain just results. They are not ends in themselves. For this reason, we do not generally consider noncompliance with rules or statutory procedures to warrant reversal in the absence of prejudice." Heintz v. Woodson, 758 S.W.2d 452, 454 (Mo. banc 1988). Appellant does not suggest, nor can we discern, how the alleged error affected the action's merits. Indeed, there was no final judgment until 14 months after this summary judgment was entered, and the record shows no complaint by Appellant to the trial court about a lack of notice on the summary judgment during this time.