author: ROBERT S. BARNEY, Judge.

text:
    Richard REBSTOCK, Appellant, v. STATE of Missouri, Respondent.
    No. SD 29856.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 26, 2010.
    Motion for Rehearing or Transfer Denied March 16, 2010.

      Kent Denzel, Columbia, for appellant.
    Chris Koster, Atty. Gen. and Jamie Pamela Rasmussen, Asst. Atty. Gen., Jefferson City, for respondent.
   ROBERT S. BARNEY, Judge.

Richard Rebstock (“Movant”) appeals the motion court’s denial following an evi-dentiary hearing of his postconviction motion filed pursuant to Rule 24.035. He asserts three points of motion court error. Point III is dispositive. We reverse and remand.

Movant was charged with one count of the class B felony of child molestation in the first degree, a violation of section 566.067, for subjecting his victim, who was less than fourteen years of age, to “sexual contact.” On December 22, 2005, Movant appeared with counsel, Eric Stryd (“Attorney Stryd”), and entered a negotiated guilty plea to the aforementioned charge. The State declared it was recommending that Movant “be sentenced to fifteen years in the Missouri Department of Corrections ...” and that the plea court “suspend execution of that sentence and place [him] on five years supervised probation under the usual written rules and conditions.... ” Movant was sentenced according to the plea agreement.

On June 30, 2006, a probation revocation hearing was held. The State maintained Movant had not complied with the terms of his probation. At the hearing, Movant admitted he had failed to attend certain required classes and that he had failed to report to his probation officer. The court revoked his probation and ordered execution of his fifteen year sentence.

An evidentiary hearing was held on Movant’s postconviction relief motion on November 24, 2008. He was the sole witness to offer testimony. The State presented no evidence.

The motion court entered its “Judgment and Findings of Fact and Conclusions of Law” on March 19, 2009, in which it denied Movant’s Rule 24.035 motion. This appeal by Movant followed.

We review Movant’s points relied on out of order for the sake of judicial economy and efficiency. In his third point relied on, Movant asserts the motion court clearly erred in failing to enter specific findings of fact and conclusions of law relating to his allegation under Paragraph 8.b of his amended Rule 24.035 motion, that the plea court failed to advise him of the range of punishment for the offense to which he plead guilty, as required by Rule 24.02. See 566.067.2 and 558.011.1(2). He maintains the motion court only addressed the claims set out in Paragraph 8.a of his amended motion such that he was “deprived ... of the opportunity for meaningful appellate review ....”

“Appellate review of an order sustaining or denying a motion for [post-conviction] relief is limited to a determination of whether the court’s findings of fact and conclusions of law are clearly erroneous.” Murta v. State, 257 S.W.3d 671, 674 (Mo.App.2008); see Rule 24.035(k). “ ‘The findings of the motion court are presumptively correct.’” Id. (quoting Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991)). “The clearly erroneous standard is satisfied only if, after a review of the entire record, this Court is left with the definite and firm impression that a mistake has been made.” Id.

Rule 24.035(j) requires that the motion court “shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.” “There is no precise formula to which findings of fact and conclusions of law must conform.” Conway v. State, 883 S.W.2d 517, 517 (Mo.App.1994).

In our review of the motion court’s findings of fact and conclusions of law, while the motion court made certain findings relating to' Movant’s claim regarding ineffective assistance of plea counsel as set out in Paragraph 8.a of his amended motion, it is clear the motion court did not address Movant’s claim as set out in Paragraph 8.b, which was that the plea court violated certain of Movant’s constitutional rights when it “induced Movant[’s] unknowing, unintelligent, and involuntary guilty plea by failing to inform Movant ..., on the record, the mandatory minimum penalty provided by law and the maximum possible penalty provided by law as required by Rule 24.02.”

The sole possible reference to Paragraph 8.b was the motion court’s general finding and conclusion that “the evidence adduced by Movant failed to substantiate any of his substantive claims in his amended motion under 24.035.” However, “Rule 24.035(j) mandates that the motion court make findings of fact as to all grounds for relief presented by a movant.” Watts v. State, 206 S.W.3d 413, 417 (Mo.App.2006). The motion court did not do this in reference to Paragraph 8.b.

“The case law has recognized five circumstances under which the deficient findings and/or conclusions do not require reversal.... ” Grimes v. State, 260 S.W.3d 374, 375 (Mo.App.2008). These are where: (1) “the only issue before the court is one of law;” (2) the motion court conducts a hearing but there is no substantial evidence presented by the movant to support the allegation upon which the court failed to make findings; (3) the motion court “fails to ‘issue a proper conclusion of law on an isolated issue’ and it is clear that the movant is entitled to no relief, as a matter of law, and will suffer no prejudice if a remand is denied;” (4) the issues “were not properly raised or are not cognizable in a [postconviction] motion;” and (5) “the motion itself was insufficient.” Id. at 417-18.

It is our view that the only possible exception applicable to the instant matter which would exclude the motion court from making its requisite findings of facts and conclusions of law as to Paragraph 8.b is where “there has been an evidentiary hearing at which no substantial evidence is presented in support of a factual claim.... ” State v. Hunter, 840 S.W.2d 850, 864 (Mo. banc 1992). Under this foregoing circumstance “there is no error in failing to make a finding of fact or conelusion[ ] of law regarding a bare allegation in a [postconviction] motion.” Id:, see Barry v. State, 850 S.W.2d 348, 350 (Mo. banc 1993). Again, this is not the factual scenario which has unfolded in the instant matter. Here, there was an evidentiary hearing on Movant’s postconviction relief motion and Movant presented his own testimony that the plea court failed to advise him of the minimum and maximum punishment attendant to the charge against him. Further, the motion court took judicial notice of the file, but the plea transcript is devoid of a showing that Movant had been informed of the range of punishment by the plea court. “ ‘Among the purposes of Rule 24.02 is the intention that the court be convinced that the defendant understand the specific charges and the maximum penalty confronting him and that the defendant recognizes that by pleading guilty, he waives a number of legal rights.’ ” State v. Taylor, 929 S.W.2d 209, 216 (Mo. banc 1996) (quoting Steinle, 861 S.W.2d at 143). “The motion court must issue findings of fact and conclusions of law in accordance with Rule [24.035(j) ].” Barry, 850 S.W.2d at 350.

We recognize “[o]ther issues are raised.” Id. “However, until the [motion court] has entered proper findings of fact and conclusions of law which are sufficiently specific to allow meaningful appellate review, those issues cannot be reached.” Id. Point III has merit and is dispositive of this appeal.

The Judgment and Findings of Fact and Conclusions of Law is reversed and the cause is remanded for the motion court to comply with Rule 24.035(j). Id.

BATES, P.J., and BURRELL, J„ concur.

      . All rule references are to Missouri Court Rules (2006).

      . All statutory references are to RSMo 2000.

      . Here, paragraph 8.a of the amended motion set out that
      [p]lea counsel was ineffective for inducing Movant['s] ... unknowing, unintelligent, and involuntary guilty plea[] by failing to explain the rights that Movant ... would be giving up by entering a plea of guilty and by failing to generally discuss the plea procedures with Movant.... Plea counsel was ineffective for failing to adequately investigate whether the alleged victim in this case had recanted her story.

      . Rule 24.02(b) sets out that:
      [e]xcept as provided by Rule 31.03, before accepting a plea of guilty, the court must address the defendant personally in open court, and inform defendant of, and determine that defendant understands, the following:
      1. The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law....
      We gratuitously note that “the requirements and procedures articulated in Rule 24.02 do not constitute an unalterable script that a court must follow before accepting a defendant's guilty plea.” Steinle v. State, 861 S.W.2d 141, 143 (Mo.App. 1993). Nevertheless, “the wisest course for the court accepting a defendant’s guilty plea may be to meticulously follow in detail the specific items enumerated by Rule 24.02.” Holland v. State, 990 S.W.2d 24, 29 (Mo.App.1999).


source: Caselaw Access Project

author: NANCY STEFFEN RAHMEYER, Judge.

license: Public Domain

text:
    Gregory D. DAHMER and Candi S. Dahmer, Plaintiffs-Appellants, v. Robert F. HUTCHISON, Defendant, and Consumers Insurance, Defendant-Respondent.
    No. SD 29848.
    Missouri Court of Appeals, Southern District, Division Two.
    March 22, 2010.
    Motion for Rehearing or Transfer Denied April 13, 2010.
    James E. Corbett, David T. Tunnell, Matthew W. Corbett, Daniel P. Molloy, Springfield, MO, for Appellant.
    Nikki Cannezzaro, Kansas City, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Gregory D. and Candi S. Dahmer (“Appellants”) obtained a judgment against Robert F. Hutchison (“Hutchison”) in an action to recover damages for injuries Mr. Dahmer suffered as a result of an accident that occurred March 9, 2006, on Hutchi-son’s property. Pursuant to section 379.200, Appellants petitioned to collect that judgment from Consumers Insurance (“Respondent”), who had issued an insurance policy to Hutchison. Respondent filed a counter-claim for declaratory judgment against Appellants seeking a declaration that Hutchison’s policy does not afford coverage for the consent judgment against Hutchison, and filed a motion for summary judgment on the same ground. The motion court concluded that Hutchison’s policy did not cover the claims arising out of the March 9, 2006 accident, that Respondent was not obligated to defend Hutchi-son against those claims, and that Respondent was not obligated to indemnify Hutchison for any judgment entered on those claims. Accordingly, the motion court granted summary judgment in favor of Respondent, which led to this appeal. We reverse and remand.

Hutchison was engaged in the business of restoring and selling used cars, and kept approximately 2,000 cars on his property, seventy-five percent of which were rolling chassis — meaning they had no engine or transmission. Mr. Dahmer knew Hutchi-son to be in the business of buying and selling old cars and, on March 9, 2006, Mr. Dahmer went to Hutchison’s place of business to purchase a mid-1960s Chevrolet. Mr. Dahmer hoped to take the rear-end/differential from the mid-1960s Chevrolet and put it in a 1955 Chevrolet he was rebuilding. Hutchison had a rolling chassis that fit Mr. Dahmer’s needs, and the two eventually agreed to a price between $100 and $135 for the differential. The parties did not determine whether or not Mr. Dahmer would return later to pick up the rest of the rolling chassis, but they agreed that Mr. Dahmer could take the differential in his Chevrolet S-10 pick-up that morning.

Hutchison used his tractor and a front-end loader to raise the rolling chassis off the ground, and then placed jack stands underneath it to secure it. After dropping the differential and moving it parallel to the rolling chassis, Hutchison returned to the tractor. As Hutchison attempted to position the front-end loader over the differential so he could attach it to the loader and lift it into the bed of Mr. Dahmer’s S-10 pick-up, his foot slipped off the clutch, causing the tractor to lurch forward and the loader to strike Mr. Dahmer. Mr. Dahmer suffered a broken leg as a result, which required surgery. Appellants obtained a judgment in a negligence action against Hutchison, the collection of which is the subject of the present case.

Respondent had issued a general liability insurance policy to “ROBERT HUTCH-ISON, DBA BOB HUTCHISON USED CARS” that was in effect at the time of the accident injuring Mr. Dahmer. The policy indemnified Hutchison for liabilities up to $100,000 per accident and $300,000 total. The auto dealer policy’s coverage is described in the “Garage Coverage Form,” and is limited by the “LOCATIONS AND OPERATIONS EXCLUSION FORM,” which reads as follows:

Locations and Operations Not Covered:
Exclude Residence Premise Liability
Exclude salvage operations & wrecker
The above listed location/operation or any liability claims or property damage claims resulting from the above listed location/operation are specifically excluded under the terms of this policy and Consumers Insurance would not be liable for these locations|7]operations.
Signature: /s/ Robert N. Hutchison
Date: 1-4-06

The trial court found that the term “salvage operation” was unambiguous, and that the transaction between Mr. Dahmer and Hutchison was a salvage operation not covered by the insurance policy, thus entitling Respondent to summary judgment. On appeal, Appellants argue that the transaction did not constitute a salvage operation excluded by the policy, or in the alternative that the judgment should be reversed because the term is ambiguous. Respondent concedes that Hutchison’s primary business was not a salvage operation, but argues that the term “salvage operation” in the policy is unambiguous, and that the transaction between Hutchison and Mr. Dahmer was a salvage operation excluded from coverage by the policy.

Our review of the trial court’s grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The issue of whether an insurance policy is ambiguous is a question of law. Todd v. Mo. United Sch. Ins. Council, 223 S.W.3d 156, 160 (Mo. banc 2007). A term is ambiguous if it is reasonably open to different constructions. Seeck v. Geico General Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007). In determining whether a contract term is ambiguous, we interpret the term in the context of the contract as a whole. Yerington v. La.-Z-Boy, Inc., 124 S.W.3d 517, 520 (Mo.App. S.D.2004). It is well-established that an ambiguous contract term is construed against the insurer, so a court need not resort to extrinsic evidence offered to demonstrate the parties’ intended meaning of the term. Burns v. Smith, 303 S.W.3d 505, 511-12 (Mo. banc 2010).

We find the phrase “Exclude Salvage operations & wrecker” to be reasonably open to different constructions, and therefore ambiguous. We first note that the term “salvage operations” is not defined in the contract. Given that Hutchison obtained an auto dealer policy, yet had roughly 1,500 rolling chassis in his pool, “salvage operations” does not indicate where the parties intended to draw the line between dealing “autos” and dealing salvaged parts. Were we to find the term “salvage operations” unambiguous, we would be forced to determine just how many parts must be connected together in a certain manner and sold as a single unit at a single time in order to qualify as the sale of an “auto” that is covered by the policy, as opposed to the sale of a salvaged part that is not. We decline to undertake that venture here.

Furthermore, the phrase “Exclude Salvage operations & wrecker” simply does not inform us whether the parties intended that Hutchison only be covered when selling an entire “auto” in a single transaction, or that he be covered when selling an entire “auto” even if a customer took it home piece by piece. While “salvage operations” could reasonably include a single transaction involving the sale of anything other than a whole car in a single transaction, it could also reasonably mean any operations in which Hutchison pulled useable parts off cars for resale, and then crushed the remainder to sell for scrap. Either interpretation is plausible under the common understanding of “salvage operations,” but the latter would appear to provide coverage for the March 9, 2006 accident; the former would not. Given these reasonable alternative meanings, the phrase as used in the policy is ambiguous.

In addition, we note that the context of “salvage operations” casts doubt on its precise meaning. A case involving a similarly-oriented policy exclusion was addressed by our Supreme Court in Burns v. Smith, 303 S.W.3d 505, 511-12 (Mo. banc 2010), which we find instructive. There, the insurer argued that despite two coverage exclusion clauses numbered (1) and (2), the use of “and” in clause (1) really-meant “or,” so clause (1) should be read to operate as two distinct exclusions, which would have excluded coverage for the injury suffered by Burns. Id. at 510-11. The court held that reading clause (1) as two distinct exclusions would essentially be adding the number (3) to the definition to operate as a third exclusion, and refused to do so. Id. at 510-11. The court also noted that while “and” can mean “or,” its common meaning is “along with or together with,” so accepting the insurer’s argument would mean only that “and” can be ambiguous. Id. The use of “and” requires both the first and second portion of a clause to “fulfill its common role needing all operands.” Id.

Here, the “LOCATIONS AND OPERATIONS EXCLUSION FORM” provides three lines on which to handwrite excluded locations or operations. Handwritten on the first line is “Exclude Residence Premise Liability,” and handwritten on the second line is “Exclude Salvage operations & wrecker.” The third line is blank. This arrangement tends to suggest that there are essentially two exceptions: one for accidents in or around the residence; and another for salvage operations and the wrecker. The use of the conjunction “and,” indicated by the use of the ampersand here, indicates that “salvage operations” is somehow linked to “wrecker” to form the second exclusion. Had the disjunctive “or” been used, the phrase could be read to exclude liabilities stemming from either of the two. However, the conjunctive phrasing that links “salvage operations” to “wrecker” raises the possibility that the parties intended to exclude from coverage activities involving the use of the wrecker in salvage operations. We need not speculate as to whether this is correct, as the ambiguity alone is the basis for reversal and must be construed against Respondent.

As the trial court noted, the phrase “salvage operations” must have meant something to the parties, but because of the ambiguous nature of “Exclude Salvage operations & wrecker,” when read in the context of the whole policy, we find the policy exclusion ambiguous and reverse the summary judgment for Respondent.

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

LYNCH, P.J., BATES, J., concur.

      . All statutory references are to RSMo 2000, unless otherwise indicated. Section 379.200 reads in, pertinent part:
      Upon the recovery of a final judgment against any person ... by any person ... for loss or damage on account of bodily injury or death, or damage to property if the defendant in such action was insured against said loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money, provided for in the contract of insurance between the insurance company, person, firm or association as described in section 379.195, and the defendant, applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor may proceed in equity against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment. Section 379.200.

      .The exclusionary clause before the court read, "(1) A trade, profession, or occupation, excluding farming, and the use of any premises or portion of residence premises for any such purposes....” Burns, 303 S.W.3d at 510 (emphasis in original). The insurer argued that the clause operated as two separate exclusions, one for injuries arising out of a trade, profession, or occupation of the insured, and a second for injuries arising out the use of any premises or portion of residence premises for such purposes. Id.

      . In arriving at this common meaning, the court cited Webster’s Third New International Dictionary, Unabridged, Merriam Webster 80 (1993), Black’s Law Dictionary 86 (6th ed.1991), and Webster’s New World College Dictionary, Merriam Webster 51 (3d ed.1996).

      . The wrecker was not used in the March 9, 2006 incident.


author: NANCY STEFFEN RAHMEYER, Judge. GARY W. LYNCH, Presiding Judge,

text:
    David TAYLOR, Claimant-Appellant, v. CONTRACT FREIGHTERS, INC., Employer-Respondent, and Missouri State Treasurer, Custodian of the 2nd Injury Fund, Respondent.
    No. SD 29945.
    Missouri Court of Appeals, Southern District, Division Two.
    April 8, 2010.
    Motion for Rehearing or Transfer Denied April 30, 2010.
    Application for Transfer Denied Aug. 31, 2010.

      John A. Christiansen, Blue Springs, for Appellant.
    Ronald G. Sparlin, Joplin, for Employer-Respondent.
    Chi'is Koster, Atty. Gen., Christina Hammers, Springfield, for Custodian Second Injury Fund.
   NANCY STEFFEN RAHMEYER, Judge.

David Taylor (“Claimant”), who is sixty-seven years old, worked a total of over thirteen years in the employ of Contract Freighters, Inc. (“CFI”), as an over-the-road truck driver. On November 4, 2006, while working for CFI driving an 18-wheeler, Claimant claimed he felt a dip down as his truck veered to the right and started off the road. As he attempted to correct the truck and veer back to the left, the track ran off the road; Claimant received injuries from the accident. CFI denied coverage for the injuries on the basis that the accident involved an “idiopathic condition,” which was not covered by Chapter 287; CFI claims that Claimant coughed just prior to the accident and that his coughing was an idiopathic condition pursuant to section 287.020.3. The Labor and Industrial Relations Commission (“the Commission”) agreed and denied Claimant benefits.

Claimant sets forth a multi-pronged point; he argues that there was insufficient evidence to support the finding that coughing caused the wreck and that the Commission erred in finding that any alleged coughing was an idiopathic condition. Although Claimant’s point violates Rule 84.04 by bringing two disparate claims in one point, CFI was able to discern Claimant’s argument, as are we, and we choose to review the point on its merits. It is always this Court’s preference to address a point on its merits where we can discern the argument being made and can address it without becoming an advocate for a party or placing an opposing party at a disadvantage. Citizens for Ground Water Protection v. Porter, 275 S.W.3d 329, 347 (Mo.App. S.D.2008).

This Court’s review of a decision of the Commission in workers’ compensation cases is set forth in Kuykendall v. Gates Rubber Company, 207 S.W.3d 694 (Mo.App. S.D.2006):

Generally, in reviewing a workers’ compensation award, we review the findings of the Commission and not those of the ALJ. However, if, as in the present matter, “the Commission incorporates the ALJ’s award and decisions ... we consider the findings and conclusions of the Commission as including the ALJ’s award.” “The Commission reviews the record, and, where appropriate, it will also determine the credibility of witnesses and the weight of their testimony, resolve any conflicts in the evidence, and reach its own conclusions on factual issues independent of the ALJ.” “The Commission’s interpretation and application of the law ... are not binding on this [C]ourt and fall within our realm of independent review and correction.”

Id. at 702 (internal citations omitted).

Section 287.020.3 provides that an injury shall be deemed to arise out of and in the course of employment only if:

(a) it is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and
(b) it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

Section 287.020.3(2).

Clearly, there is no question that Claimant would have sustained an injury arising out of and in the course of his employment absent the finding regarding his idiopathic condition. The injury, as defined by section 287.020.3(5), was the “violence to the physical structure of the body.” The cough did not cause the physical violence to the body structure. Furthermore, an accident is defined as an “unexpected traumatic event or unusual strain identifiable by time and place of occurrence ... caused by a specific event during a single work shift.” Section 287.020.2. The cough was not an unexpected traumatic event or unusual strain identifiable by time and place of occurrence. The truck accident was the unexpected traumatic event. The truck accident caused the violence to the body structure. There is no claim that the injury came from a hazard or risk unrelated to the employment to which Claimant was equally exposed outside of and unrelated to the employment in normal non-employment life. Therefore, because Claimant met his burden in establishing that he sustained an injury arising out of and in the course of his employment, we now address section 287.020.3(3).

In 2005, the legislature enacted section 287.020.3(3), which states, “An injury resulting directly or indirectly from idiopathic causes is not compensable.” Section 287.020.3(3). We find that there is no evidence that Claimant had an idiopathic condition, specifically, even if Claimant coughed while driving the truck, there was no evidence that the cough was an idiopathic condition as defined under the workers’ compensation law. An idiopathic condition is one that is “peculiar to the individual: innate.” Alexander v. D.L. Sitton Motor Lines, 851 S.W.2d 525, 527 n. 3 (Mo. banc 1993). Evidentiary support is required to successfully claim an event is entirely idiopathic, “i.e., the event results from some cause personal to the individual, such as a physical defect or disease.” Huffmaster v. Am. Rec. Prods., 180 S.W.3d 525, 529 (Mo.App. E.D.2006). There is no evidentiary support that, even if we accept the factual determination by the Commission that Claimant coughed just prior to the accident, his cough was caused by a physical defect or disease.

The Commission cited Ahern v. P & H, LLC, 254 S.W.3d 129 (Mo.App. E.D.2008), as support for the denial of benefits. Ahem addressed the effect of section 287.020.3(3) in a case where an employee was injured after he suffered a seizure while roofing a building and fell from the roof. Id. at 132, 135. In Ahem,, the Commission denied benefits and the Eastern District of this Court affirmed, finding that the employee’s condition of seizures was an idiopathic condition because it was “peculiar to the [employee]” and contributed to the occurrence of the injury. Id. at 135-36. In this case, the Commission correlates a medically diagnosed seizure condition to a cough and determined that coughing is an idiopathic condition. There was not sufficient competent evidence in the record to warrant that conclusion.

To accept the Commission’s finding, there must have been evidence that this cough was uniquely personal to Claimant. It is within a layperson’s knowledge that all people cough, and for a variety of reasons. The very fact that all people cough is enough to distinguish this case from the seizure in Ahem. It is CFI that is contending that coughing is an idiopathic condition, i.e. peculiar to Claimant, not common to all people. Expert medical testimony is not necessary to establish the cause of an injury if causation is a matter within the understanding of laypersons; however, when the condition presented is “a sophisticated injury that requires surgical intervention or other highly scientific technique for diagnosis ... the proof of causation is not within the realm of lay understanding nor-in the absence of expert opinion-is the finding of causation within the competency of the administrative tribunal.” Kuykendall, 207 S.W.3d at 711-12. If Claimant had such a unique coughing condition that it made it a physical defect or disease, it was not put into evidence in this case. There was no testimony in this matter of the medical origin of Claimant’s cough.

The Commission simply stated the following reasoning. Claimant had an admitted episode of coughing at the time of the accident, Claimant had coughing spells in the past, and, therefore, Claimant’s cough on this occasion was caused by his chronic coughing spell. There was simply no evidence that this particular cough was the result of Claimant’s chronic coughing condition or, more importantly, that this cough was unique to Claimant.

To reach the Commission’s conclusion that Claimant’s idiopathic condition caused the cough on the day of the accident, there must have been some evidence that this particular cough was caused by some coughing condition unique to Claimant. There is no evidence in the record to support that conclusion. The problem with the Commission’s analysis is that at any time an employee coughs or sneezes, something so common that it cannot be said to be peculiar to any employee, the burden would be on the employee to prove what caused the cough or sneeze. An employee would be forced to get into the area of the negligence of the employer in allowing dusty conditions or irritating inhalants on its property. “The substitution of the Workers’ Compensation Law for traditional tort remedies reflects an historical compromise recognizing the benefits of providing a means to effectively resolve claims for workers’ injuries without resorting to the unpredictability of litigation.” State ex rel. Larkin v. Oxenhandler, 159 S.W.3d 417, 421 (Mo.App. W.D.2005). It would be an ironic twist if a claimant contended that a cough directly or indirectly caused an injury to the claimant and, therefore, the workers’ compensation law did not apply. It would be nonsensical if, due to the negligence of an employer in causing the person to cough, the workers’ compensation law did not apply. To hold, on the facts of this case, that a cough is an idiopathic condition strains beyond recognition the definition of idiopathic condition. That logic is absolutely contrary to the rationale for workers’ compensation benefits.

The judgment of the Commission is reversed as the award is contrary to the overwhelming weight of the evidence. The Commission erred in finding that Claimant’s cough was an idiopathic condition. The case is remanded for a hearing not inconsistent with this opinion.

SCOTT, C.J., recused.

LYNCH, P.J., concurs in separate opinion.

BATES, J., concurs.

GARY W. LYNCH, Presiding Judge,

concurring.

I concur in the principal opinion. As explained there, coughing — a condition common to all humans — is not a condition peculiar to Claimant and, thus, by definition is not idiopathic. Because Claimant’s injuries were not the result, either directly or indirectly, of an idiopathic cause, the Commission erred in applying section 287.020.3(3) to deny Claimant compensation for his injuries.

I write separately to point out that our decision in this case is limited solely to that issue. We need not and do not address any issue related to the interplay between subsection 287.020.3(2), which grants compensability for an injury by accident, and subsection 287.020.3(3), which denies compensability for an injury resulting from idiopathic causes. Likewise, we express no opinion as to whether Ahem properly addressed this interplay under its facts.

The legislative changes in 2005 — substantial rewording of section 287.020.3(2), the inclusion of section 287.020.3(3), and the requirement that they be strictly construed — raise several questions. Do these two subsections of 287.020.3 describe two mutually exclusive classes of injuries such that a finding under one excludes a finding under the other? Or, assuming that facts may support findings under both subsections in a particular case, does one trump the other? If so, which one prevails? Because we find that section 287.020.3(3) does not apply to the facts of this case, we necessarily must leave the answers to these questions for another day.

      . Ail references to statutes are to RSMo Cum. Supp.2005, and all rule references are to Missouri Court Rules (2009), unless otherwise specified.

      . The ALJ found that Claimant was a smoker and had a smoker’s cough. The Commission did not make that finding, although it gave "deference” to the ALJ's finding. It does not affect our analysis here whether the cough was a "smoker’s cough,” as there was no evidence as to that as any medical diagnosis.

      . If the Commission's finding is that every person has a cough unique to himself, then the very definition of idiopathic condition is rendered meaningless.


author: PER CURIAM.

text:
    Eman HAMDAN, Respondent, v. Ahmad SARAMAH, Appellant.
    No. ED 93103.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 11, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 14, 2010.
    Keith G. Liberman, Clayton, MO, for appellant.
    Jason D. Dodson, St. Louis, MO, for respondent.

      Before GLENN A. NORTON, P.J., MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

The father, Ahmad Saramah, appeals the judgment entered by the Circuit Court of St. Charles County dissolving his marriage to the mother, Eman Hamdan, and ordering, inter alia, that he pay child support of $951 per month for the parties’ four children. We have reviewed the parties’ briefs, supplemental letter briefs, and the record on appeal and find no error.

An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this

decision.

We affirm the trial court’s judgment. Rule 84.16(b)(5).

      . We deny all pending motions.


author: PER CURIAM:

text:
    Frederick SPENCER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71555.
    Missouri Court of Appeals, Western District.
    May 25, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Frederick Spencer, Bowling Green, MO, Appellant Acting pro se.
    Bart A. Matanic, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Frederick Spencer appeals the circuit court’s judgment dismissing his petition for declaratory judgment. We affirm. Rule 84.16(b).


author: JOSEPH M. ELLIS, Judge.

text:
    Tina Ann CANTWELL, Respondent, v. Norman Bradford CANTWELL, Appellant.
    No. WD 71103.
    Missouri Court of Appeals, Western District.
    June 1, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.

      Norman B. Cantwell, Appellant Pro-se.
    David R. Smith, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and GARY D. WITT, Judge.
   JOSEPH M. ELLIS, Judge.

Norman Cantwell (“Father”) appeals from a judgment entered in the Circuit Court of Jackson County modifying the decree of dissolution between Father and Tina Cantwell (“Mother”) to grant Mother sole legal custody over the couple’s two children. For the following reasons, the appeal must be dismissed.

On May 16, 2006, the circuit court entered its judgment dissolving the marriage. The court granted joint legal and physical custody of the minor children— Melissa, born September 26, 1992, and Michael, born April 28, 1997 — to the couple. The court established a parenting plan under which Father was to have custody of the children Wednesday evenings, every other weekend, and half of the holidays. Father was ordered to pay $788.00 per month in child support.

On October 15, 2007, Mother filed her motion to modify the dissolution decree as to child custody and support. She claimed that continuing and substantial changes had occurred in the circumstances of the children warranting a change in the custody provisions to grant her sole legal and physical custody. She asserted that Father had repeatedly and intentionally acted to alienate Michael from her, had conspired with Michael to place a substance looking like methamphetamine in her car, and had contacted the police to investigate her for drug use.

The matter was heard by the circuit court over the course of three days. Subsequently, on April 25, 2009, the circuit court entered its judgment modifying custody to grant sole legal custody to Mother. In its judgment, the trial court found that the majority of Mother’s evidence was credible and that Father’s evidence was not. The court found that Father continuously attempted to alienate Michael from Mother, that Father had a pattern of making false complaints to the Division of Social Services related to Mother, that Father had failed to adhere to the parenting time schedule, and that Mother and Father were incapable of communicating regarding their children. The court found that a continuing and substantial change of the children’s circumstances had occurred that warranted a change in legal custody. The court found that it was, however, in the children’s best interests for the parties to continue to have joint physical custody and adopted a parenting plan that slightly adjusted Father’s parenting schedule. The court also ordered Father to pay a portion of Mother’s attorney’s fees.

In his sole point on appeal, acting pro se, Father challenges the trial court’s grant of sole legal custody of Michael to Mother, claiming that the trial court abused its discretion in making that decision without sua sponte calling Michael as a witness or interviewing him. Father claims that the court’s credibility determinations and factual findings would have been different if the Court had heard Michael’s testimony.

Though Father appears pro se, he is still “bound by the standards and rules of procedure as a party represented by a licensed attorney.” Dressel v. Dressel, 221 S.W.3d 475, 476 (Mo.App. E.D.2007). “While we are not unmindful of the challenges that face pro se litigants, judicial impartiality, judicial economy, and fairness to all parties prohibit this Court from relaxing these requirements.” Id.

In this appeal, Father asks that we accomplish our review having provided us with an incomplete legal file and no transcript of the proceedings before the trial court. “Rule 81.12 specifies the record which must be provided by an appellant on appeal and imposes upon an appellant the duty to file the transcript and prepare a legal file so that the record contains all evidence necessary to make determinations on the issues raised.” Carter v. State, 253 S.W.3d 580, 582 (Mo.App. S.D.2008). “It is the duty of an appellant to furnish a transcript containing a record of proceedings which he desires to have reviewed. In the absence of such record there is nothing for the appellate court to decide.” Milone v. Duncan, 245 S.W.3d 297, 301 (Mo.App. W.D.2008) (internal quotation omitted). “Because [Father] has failed to file a transcript of the hearings in the [modification of custody] proceedings, this Court has no way to determine whether the trial court did in fact err in its judgments.” Dressel, 221 S.W.3d at 477.

Without the transcript, this Court has no way to assess Father’s claim that the trial court abused its discretion in failing to question Michael on the stand or interview him in chambers. Because Father has failed to provide us "with the necessary record to review his claim on appeal, this Court is left with no other recourse than to dismiss his appeal.

All concur.

      . Mother also requested that child support be modified to account for her increased physical custody of Michael, but she later abandoned that request.

      . Father makes no challenge to the circuit court's judgment with regard to Melissa.

        .Ex gratia, we note that trial courts are granted discretion to interview children in chambers pursuant to § 452.385; they are not required to do so. Moreover, either parent has the right to call a child to testify if the child is otherwise competent if the court refuses to conduct an interview, and failure to call the child precludes a showing of prejudice resulting from the court’s failure to interview. Babbitt v. Babbitt, 15 S.W.3d 787, 789 (Mo.App. S.D.2000).


text:
    STATE of Missouri, Respondent, v. Edward J. GEORGE, Appellant.
    No. WD 70380.
    Missouri Court of Appeals, Western District.
    June 8, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Susan L. Hogan, Esq., Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Esq. and Dora A. Fichter, Esq., Jefferson City, MO, for respondent.
    BEFORE DIVISION ONE: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR. and ALOK AHUJA, Judges.
   Order

PER CURIAM.

Edward George appeals his convictions by jury for first-degree murder, first-degree assault, and two counts of armed criminal action. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment of convictions.

AFFIRMED. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Timothy R. ADAMS, Appellant.
    No. WD 70711.
    Missouri Court of Appeals, Western District.
    June 15, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Chris Koster, Attorney General, Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for respondent.
    Susan L. Hogan, Appellate Defender, Kansas City, MO, for appellant.
    Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and ALOK AHUJA, Judges.
   Order

PER CURIAM:

Timothy R. Adams appeals the judgment of the Circuit Court of Howard County in which Adams was found guilty of murder in the first degree and armed criminal action. In his sole point on appeal, Adams maintains that the trial court erred in overruling Adams’s motions for judgment of acquittal at the close of the State’s case because Adams argues that the State did not present sufficient evidence to enable a jury to find Adams guilty beyond a reasonable doubt. We affirm in this per curiam order and have provided a memorandum explaining our ruling to the parties. Rule 30.25(b).


text:
    Brandon TALBOTT, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70246.
    Missouri Court of Appeals, Western District.
    June 22, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Susan L. Hogan, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and John W. Grantham, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   Order

PER CURIAM:

Brandon Talbott appeals the denial of his Rule 24.035 motion after an evidentiary hearing. He complains on appeal about not being allowed to withdraw his guilty plea. He also complains about the alleged ineffectiveness of his plea counsel. Affirmed. Rule 84.16(b).


text:
    Lorenzo GILYARD, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70518.
    Missouri Court of Appeals, Western District.
    June 22, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Susan L. Hogan, Kansas City, MO, for Appellant.
    Jayne T. Woods, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Mr. Lorenzo Gilyard appeals the judgment dismissing his Rule 29.15 motion for post-conviction relief.

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


text:
    STATE of Missouri, Respondent, v. Derrick D. PEACE, Appellant.
    No. WD 70617.
    Missouri Court of Appeals, Western District.
    June 22, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2010.
    Susan L. Hogan, Kansas City, MO, for appellant.
    Shaun J. Mackelprang and Terrence M. Messonnier, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   Order

PER CURIAM:

Derrick Peace appeals the trial court’s judgment convicting him of murder in the second degree, assault in the first degree, and two counts of armed criminal action. Affirmed. Rule 30.25(b).


author: DANIEL E. SCOTT, Chief Judge.

text:
    Mark BALDWIN, et al., Appellants, v. Karen FISCHER-SMITH and Patricia Hall, Respondents.
    No. SD 30235.
    Missouri Court of Appeals, Southern District, Division Two.
    July 6, 2010.

      Paul A. Agathen, Washington, MO, Appellants.
    Karen Fischer-Smith, Apache Junction, AZ, Patricia Hall, Warminster, PA, pro se.
   DANIEL E. SCOTT, Chief Judge.

People write lots of nasty stuff about each other and publish it on the Internet. Sometimes the targets of these publications sue for defamation. Usually the targets want to sue at home and most of the time the defendants live elsewhere. Those who then find themselves defending libel actions brought in other states often move to dismiss on the ground that the court lacks personal jurisdiction. This basic scenario has been played out in dozens of reported cases.

One might think that by now there would have emerged a clear rule on whether the target can sue at home or not. However, there is no clear rule; in fact, there is not even really a clear majority position.... Moreover, the variables on which the outcome depends seem to vary from court to court and case to case.

This describes the situation before us, which apparently presents issues of first impression in our state. In dismissing the underlying action, the trial court found that even if the nonresident defendants used a website to libel plaintiffs in Missouri, they lacked “the minimum contacts necessary under the due process clause to establish personal jurisdiction by the courts of Missouri.”

Our review is de novo. Bryant v. Smith Interior Design Group, Inc., 310 S.W.3d 227, 230-31 (Mo. banc 2010). We assume the petition’s allegations are true and determine if they show sufficient Missouri contacts to satisfy due process. Id.

Facts and Background

Plaintiffs are Missouri residents doing business as “Whispering Lane Kennel” near Ava, Missouri. They breed and sell dogs, exhibit them at American Kennel Club shows, and board and show client dogs for pay. Plaintiffs work primarily with the Chinese Crested breed and have won various awards, including “Best of Breed” at the Westminster Dog Show in New York City. Defendants Fischer-Smith and Hall, who live in Arizona and Pennsylvania respectively, show and sell Chinese Cresteds in competition with plaintiffs.

The jurisdictional issue hinges on plaintiffs’ allegations that defendants libeled them via an internet website: www.stop-whisperinglane.com (“the website”). Defendant Fischer-Smith bought the website name and, with defendant Hall’s aid and assistance, created and used the website to malign and damage plaintiffs and their business.

The website could be viewed by anyone with internet access. Its homepage, titled “STOP-WHISPERING LANE KENNEL,” said the kennel was in Ava, Missouri, and named three plaintiffs as owners. We need not further describe the website content since defendants have not cross-appealed the finding that plaintiffs’ libel allegations are adequate.

Google searches for the name of plaintiffs’ kennel returned links to the website, which received some 2,500 “hits” or visits from internet users in one year. At least 25 hits were by Missouri residents involved in the dog business as owners, breeders, and/or exhibitors.

Plaintiffs sued defendants in Missouri on libel and other tort theories. Defendants moved to dismiss for lack of personal jurisdiction. The trial court expressed doubt about the jurisdictional allegations and allowed plaintiffs to replead. Defendants again sought dismissal, which was granted. The trial court found the petition adequately alleged “that both defendants committed libel in Missouri,” but not “the minimum contacts neeessary under the due process clause” for long-arm jurisdiction.

Plaintiffs’ appeal raises three points. Point II addresses their principal claims for reversal, which hinge primarily on what now is known as the “effects” test of Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), with its divergent and somewhat irreconcilable interpretations by lower courts. We consider it first.

Calder and the Effects Test

In Calder, actress Shirley Jones filed suit in California, where she lived, against the author and editor of an unsavory National Enquirer story. The defendants lived in Florida and moved to dismiss for lack of personal jurisdiction. The Supreme Court unanimously found that the defendants were “primary participants in an alleged wrongdoing intentionally directed at a California resident, and jurisdiction over them is proper on that basis.” 465 U.S. at 790,104 S.Ct. 1482.

The allegedly libelous story concerned the California activities of a California resident. It impugned the professionalism of an entertainer whose television career was centered in California. The article was drawn from California sources, and the brunt of the harm, in terms both of respondent’s emotional distress and the injury to her professional reputation, was suffered in California. In sum, California is the focal point both of the story and of the harm suffered. Jurisdiction over petitioners is therefore proper in California based on the “effects” of their Florida conduct in California.
[PJetitioners are not charged with mere untargeted negligence. Rather, their intentional, and allegedly tortious, actions were expressly aimed at California. Petitioner South wrote and petitioner Calder edited an article that they knew would have a potentially devastating impact upon respondent. And they knew that the brunt of that injury would be felt by respondent in the State in which she lives and. works and in which the National Enquirer has its largest circulation. Under the circumstances, petitioners must “reasonably anticipate being haled into court there” to answer for the truth of the statements made in their article. An individual injured in California need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California.

Id. at 788-90, 104 S.Ct. 1482 (citations omitted).

This “targeting” of intentional and allegedly tortious activity toward a foreign state “has come to be known as the ‘effects’ test for establishing specific jurisdiction.” Scott T. Jansen, Oh, What A Tangled Web ... The Continuing Evolution of Personal Jurisdiction Derived from Internet-Based Contacts, 71 Mo. L.Rev. 177, 184 (2006). As the Seventh Circuit recently put it, “Colder thus suggests three requirements for personal jurisdiction in this context: (1) intentional conduct (or ‘intentional and allegedly tor-tious’ conduct); (2) expressly aimed at the forum state; (3) with the defendant’s knowledge that the effects would be felt— that is, the plaintiff would be injured — in the forum state.” Tamburo v. Dworkin, 601 F.3d 693, 703 (7th Cir.2010). It is “reasonably straightforward” to extract these rules from Calder, but applying them to internet tort cases “is more challenging.” Id.

Indeed, “the body of law surrounding Internet personal jurisdiction remains unquestionably vague.” Teresa J. Cassidy, Civil Procedure-Effects of the “Effects Test”: Problems of Personal Jurisdiction and the Internet; Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir.2008), 9 Wyo. L.Rev. 575, 594 (2009). Although cases invariably hinge on federal due process, the Supreme Court has never directly ruled on such a case. Kyle D. Johnson, Measuring Minimum Contacts over the Internet: How Couris Analyze Internet Commmnications to Acquire Personal Jurisdiction over the Ouh-of-State Person, 46 U. Louisville L.Rev. 313, 323 (2007). Many internet cases cite Calder, which was not an internet case, and the Supreme Court declined the chance to consider it in an internet setting. See Young v. New Haven Advocate, 315 F.3d 256, 262-64 (4th Cir.2002), cert. denied, 538 U.S. 1035, 123 S.Ct. 2092, 155 L.Ed.2d 1065 (2003). Missouri’s only “website” case found minimum contacts, but even plaintiffs distinguish it and call it “of little value here.”

Since we do not have definitive guidance or controlling authority, we read cases far and wide, federal and state, reported and unreported, especially the latest decisions. One thing we found is that cases rarely turn on the first or third elements described in Tamburo (i.e., that the defendants acted intentionally, knowing the plaintiffs would feel the effects in the forum state). The battle generally involves the second element — commonly called “express aiming” or “targeting” — and the same can be said for this ease.

Express Aiming

Unfortunately, narrowing the fight to this issue hardly solves the problem since there are at least three judicial views about it. “To some courts, ‘targeting’ ... only indicates an effort to reach an individual in the forum. To others, it may require a finding of intent to target the forum state itself. To still others, ‘targeting’ may only require foreseeability of effects within the forum, as based on other non-Internet connections.” Cassidy, supra, 9 Wyo. L.Rev. at 592 (footnote references omitted).

To elaborate, “where the Calder test has been applied, courts have evidenced considerable confusion as to the meaning of its express aiming or intentional targeting requirement.” C. Douglas Floyd & Shima Baradaran-Robison, Toward A Unified Test of Personal Jurisdiction in an Era of Widely Diffused Wrongs: The Relevance of Purpose and Effects, 81 Ind. L.J. 601, 618 (2006).

Obviously, the test focuses on a defendant’s purpose or intent, but what kind of purpose and what sort of intent? The Supreme Court’s opinion in Calder gives very little guidance on this question. In holding that the individual defendants in that action “knew” that the brunt of the harm caused by their allegedly defamatory article would be felt by the plaintiff in California, the court did not clearly indicate whether a desire or purpose to harm the plaintiff in California was required, or whether it was sufficient that defendants merely were aware that such harm would occur there, or whether jurisdiction should be sustained if defendants merely should have been aware that the primary impact of their conduct would occur in California. Nor did the Court indicate whether purpose or knowledge that a particular plaintiff would suffer harm in the state was required, or whether it was sufficient that the defendants were or should have been aware that some industry or person might suffer predictable harm there as a result of their conduct.
These ambiguities have led to widespread divergence among the lower courts. Some courts have suggested that something close to a subjective purpose or desire to harm the plaintiff in the forum state is required. Most courts have focused on the defendants’ awareness that their conduct would cause harm in the forum state — an interpretation that most closely corresponds with the Supreme Court’s language in Calder. However, some courts have gone further by indicating that the critical issue is not whether the defendants were in fact aware that their tortious conduct would have effects in the forum, but only whether they should have been aware that it would.
And if awareness is the key, awareness of what? Is it sufficient that the defendants are or should be aware that the primary effects of their conduct would be felt by the plaintiff in a particular state? Many courts have stated that such awareness is not alone sufficient to satisfy Calder’s express aiming requirement, and that something more must be required before the express aiming or targeting requirement is met. However, these courts do not clearly define what else is required beyond a defendant’s awareness that its conduct will have a substantial or primary impact on the plaintiff in a particular state. But even on this point, a minority view holds that “there can be no serious doubt” after Calder that the state in which the victim of a tort suffers injury can exercise personal jurisdiction over the defendant.

Id. at 618-20 (footnote references omitted).

We choose not to discuss every viewpoint and judicial opinion — plaintiffs’ initial brief in this court addressed some 70 cases on these issues alone — or weigh in on various proposals for a decisional model to fit all situations. Our more modest goal is to properly review the case before us and let others ponder the grand scheme of things.

For purposes of this opinion, therefore, we focus on Tamburo, which was decided three months ago and reflects views that we share. Interestingly enough, it also involved the dog breeding business.

Tamburo v. Dworkin

Tamburo lived and worked in Illinois. He designed software for dog breeders and incorporated data from the websites of breeders in Colorado, Michigan, and Ohio, who responded by posting statements on their websites “accusing Tamburo of ‘theft,’ ‘hacking,’ and ‘selling stolen goods,’ and calling on readers to boycott his products. They also posted Tamburo’s Illinois address on their websites and urged readers to contact him to harass him and otherwise complain.” 601 F.3d at 698. Tam-buro sued in tort in an Illinois federal court, which dismissed for lack of personal jurisdiction. Citing “Calder’s ‘express aiming’ test for personal jurisdiction in intentional-tort cases” (Id. at 697), the Seventh Circuit reversed, finding these defendants had purposely directed their conduct at Illinois.

As in our case, the “key question” in Tamburo involved the defendants’ “minimum contacts” with the forum state. Id. at 700-01 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). “Stated differently, each defendant must have purposely established minimum contacts with the forum state such that he or she ‘should reasonably anticipate being haled into court’ there.” Id. at 701 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).

Also as in our case, the claim was one of specific personal jurisdiction, which is appropriate if (1) the defendant purposefully directed activities at the forum state or purposefully availed himself of the privilege of conducting business there, and (2) the alleged injury arose out of the defendant’s forum-related activities. Id. at 702 (citing Burger King, 471 U.S. at 472, 105 S.Ct. 2174). The exercise of specific personal jurisdiction must also comport with traditional due process notions of fair play and substantial justice. Id. (citing Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154).

Again like our case, Tamburo “primarily concerned] the question whether the defendants ‘purposefully directed’ their conduct at the forum state.” Id. This purposeful-direction inquiry “ ‘can appear in different guises.’ ” Id. (quoting Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir.2008)). In contract cases, it often turns on whether the defendant “purposefully availed” himself of the privilege of doing business in the forum. Id. For intentional torts, however, “the inquiry focuses on whether the conduct underlying the claims was purposely directed at the forum state.” Id. (citing Calder, 465 U.S. at 790, 104 S.Ct. 1482). Calder provides “contours for the ‘purposeful direction’ requirement in the context of a suit alleging intentional torts,” (Id. at 702) and suggests the three-element jurisdictional test noted above. Id. at 703.

The Seventh Circuit admitted the challenge is not extracting these requirements from Calder, but applying them to specific internet tort claims. Id. Indeed, the court discussed federal circuit splits on at least three aspects of the express-aiming inquiry and a three-way circuit split on a fourth jurisdictional issue. At bottom, however,

the individual defendants purposely targeted Tamburo and his business in Illinois with the express goal of inflicting commercial and reputational harm on him there, even though their alleged defamatory and otherwise tortious statements were circulated more diffusely across the Internet. Tortious acts aimed at a target in the forum state and undertaken for the express purpose of causing injury there are sufficient to satisfy Calder’s express-aiming requirement.

Id. at 707-08, citing Eighth and Tenth Circuit precedent that actions “performed for the very purpose of having their consequences felt in the forum state” constitute Calder targeting. See Dudnikov, 514 F.3d at 1078; Finley v. River N. Records, Inc., 148 F.3d 913, 916 (8th Cir.1998). Moreover,

[u]nder even the most rigorous approach to the determination of whether the plaintiffs injury “arises out of’ the defendant’s contacts with the forum state, Tamburo’s injury clearly does. We have already concluded that [the defendants] expressly aimed their allegedly tortious conduct at Tamburo and his Illinois-based business for the purpose of causing him injury there; these “contacts” with the forum state are the cause in fact and the legal cause of Tamburo’s injury. That is, Tamburo’s claims arise directly out of the individual defendants’ contacts with Illinois.

Id. at 709. There is no meaningful difference between Tamburo and this case, and the same result follows here. Defendants’ contacts were constitutionally sufficient for the trial court to exercise personal jurisdiction over them.

Why Tamburo? Weighing the Options

Our focus on Tamburo does not mean it is the gold standard for all cases and situations. It is more accurate to say it was handed down while this appeal was pending, reflects the cases and reasoning we found most persuasive from our own research, and applies them to facts similar to ours. We have treated Tamburo as a template of sorts, directing readers to its analysis in lieu of crafting our own.

Yet the case law goes in all directions and we might have papered another result as easily. It is fair, therefore, to ask how and why we came to our conclusions. Here are five of the reasons.

First, we are not persuaded by the view that Calder cannot be satisfied, even by targeting a known forum resident and causing injury in the forum, unless the defendant also intended to target the forum state itself. This seems inconsistent with what the Supreme Court said in Burger King:

Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, this “fair warning” requirement [of the Due Process Clause] is satisfied if the defendant has “purposefully directed” his activities at residents of the forum, ... and the litigation results from alleged injuries that “arise out of or relate to” those activities....
We have noted several reasons why a forum legitimately may exercise personal jurisdiction over a nonresident who “purposefully directs” his activities toward forum residents....

471 U.S. at 472-73, 105 S.Ct. 2174 (citations omitted, emphasis ours).

Second, even if Calder does require targeting of both plaintiffs and Missouri, the website proclaimed that:

MO has the most LAX laws when it comes to the safety and concern of animals being housed and kept for breeding. This is why MO is knows [sic] as the Puppy Mill capitol of the WORLD. Commercial dog breeders from other parts of the U.S. often relocate to MO to make their living off of dogs and puppy sales as there are few laws to force them to raise the animals in a clean, healthy environment. There are more breeders in MO than in most other states combined! Because there are not enough state inspectors many breeders are able to breed and raise dogs in filthy, disgusting conditions.

If plaintiffs must show both targeting of this state and of themselves to establish jurisdiction (which we do not believe), these statements serve that purpose.

Third, we are not overwhelmed by the occasionally-expressed concern about internet activities exposing a defendant to jurisdiction in many forums.

A tortfeasor who mails a thousand bombs to recipients in one state, and one to recipients in each of the other forty-nine states, should not be relieved from geographic responsibility for the consequences of his actions in each of those states simply because he is subject to suit everywhere, or because his conduct has a uniquely intensive relationship with a single.state.

Floyd & Baradaran-Robison, supra, 81 Ind. L.J. at 659.

Fourth, our Missouri Supreme Court recently expressed a broad jurisdictional view of communication that gives rise to intentional tort claims. “Where ‘the actual content of communications with a forum gives rise to intentional tort causes of action,’ as Mr. Bryant’s petition alleges here, ‘this alone constitutes purposeful availment.’” Bryant, 310 S.W.3d at 235 (quoting Lewis v. Fresne, 252 F.3d 352, 359 (5th Cir.2001)). Compare Dudnikov, 514 F.3d at 1078 (acts performed for purpose of having consequences felt in forum “are more than sufficient” for purposeful direction per Calder, also quoted in Tamburo, 601 F.3d at 707-08).

Fifth, to tweak an observation from Reved v. Lidov, 317 F.3d 467, 476 (5th Cir.2002), if you pick a fight in Missouri, you can reasonably expect to settle it here.

Fair Play and Substantial Justice

Since defendants’ contacts are constitutionally sufficient, jurisdiction is appropriate unless it offends traditional notions of fair play and substantial justice. Int'l Shoe, 326 U.S. at 316, 66 S.Ct. 154. This is a much easier call and requires no extended discussion. “An individual injured in California need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California.” Calder, 465 U.S. at 790, 104 S.Ct. 1482. This case is no different. Due process is not offended if Missouri exercises jurisdiction over defendants in this case.

Conclusion

Point II is well taken. Reversal and remand on that basis means we need not address other claims of error. Finally, we reiterate that we have not sought to tease out any universal rule about personal jurisdiction in internet cases. We merely decided this case.

We reverse the judgment of dismissal and remand the case for further proceedings.

RAHMEYER and FRANCIS, JJ„ concur.

      1. Patrick J. Borchers, Internet Libel: the Consequences of a Non-Rule Approach to Personal Jurisdiction, 98 Nw. U.L.Rev. 473 (2004)(in-ternal citation omitted).

      . We will refer to the parties as they were in the trial court, i.e., appellants as "plaintiffs” and respondents as "defendants.”

      . Ordinarily, we also would decide if die petition invoked our long-arm statute, RSMo § 506.500. Bryant, supra. We need not do so here because defendants did not cross-appeal the ruling that they committed a tortious act (libel) in Missouri. Missouri exercises long-arm jurisdiction as broadly as due process allows to reach extraterritorial acts producing tortious consequences here. Bryant, supra.

      . The fourth plaintiff, a 15-year-old, was not mentioned by name. No one claims this impacts our jurisdictional analysis.

      . Personal jurisdiction over nonresidents can be either general or specific. A court has "general jurisdiction” over out-of-state parties whose forum connections are systematic, continuous, and substantial enough to justify personal jurisdiction on any cause of action, even if unrelated to the defendant’s forum contacts. By contrast, a court exercises "specific jurisdiction” over an out-of-state defendant " ‘in a suit arising out of or related to the defendant's contacts with the forum.' ” Bryant, 310 S.W.3d at 232 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)).

      . Not all courts and cases describe the effects test the same way. For example, the Third Circuit described the last two elements as "(2) The plaintiff felt the brunt of the harm in the forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort” and "(3) The defendant expressly aimed his tortious conduct at the forum such that the forum can be said to be the focal point of the tortious activity.” Remide v. Manfredy, 238 F.3d 248, 258 (3d Cir.2001). For a discussion whether the "brunt” of the harm must be felt in the forum state, see Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1206-07 (9th Cir.2006).

      . See State ex rel. Nixon v. Beer Nuts, Ltd.., 29 S.W.3d 828 (Mo.App.2000).

      . Despite their limited precedential value, we found several unreported federal district cases helpful for their collection and analysis of reported cases.

      . There also were Canadian and Australian defendants as to whom personal jurisdiction involved, at least in part, different or additional facts. Thus, we do not consider or cite those rulings.

      . See note 5, supra.

      . See text accompanying note 6, supra.

      . These include (1) whether express aiming considers all jurisdictionally relevant intentional acts of the defendant, or only those alleged to be tortious or otherwise wrongful {Id. at 704); (2) the proper way to understand Calder's emphasis on the defendant's knowledge of where the “brunt of the injury” would be suffered (Id. at 706 n. 9); and (3) whether express aiming is broadly met by targeting a known resident of the forum state, or more narrowly, if the forum state must be the focal point of the tort (Id. at 704-07).

      .That is, the plaintiff's injury must “arise out of” or "relate to” the defendant's forum-related activity. Id. at 708-09.

      . Burger King also undercuts cases on the other end of the spectrum that require little more than foreseeability of harm in the forum:
      Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such [minimum] contacts there when policy considerations so require, the Court has consistently held that this kind of foreseeability is not a "sufficient benchmark” for exercising personal jurisdiction.

        Id. at 474, 105 S.Ct. 2174 (citations omitted).

      . The trial court, of course, did not have the benefit of either Bryant or Tamburo, which were decided after the dismissal below.

      . Plaintiffs claim defendants waived any jurisdictional objections (Point I) and the trial court erred in denying jurisdictional discovery (Point III). We would deny both points if we had to reach them.


text:
    In the Matter of the Care and Treatment of Kevin POGUE, a/k/a Kevin A. Pogue, a/k/a Kevin Anthony Pogue, a/k/a K. Pogue, Appellant.
    No. SD 29883.
    Missouri Court of Appeals, Southern District, Division One.
    July 7, 2010.
    Emmet D. Queener, Columbia, MO, for Appellant.
    Chris Koster, Atty. Gen. and Jayne T. Woods, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   ROBERT S. BARNEY, Judge.

Kevin Pogue, a/k/a Kevin A. Pogue, a/k/a Kevin Anthony Pogue, a/k/a K. Po-gue (“Appellant”) appeals his commitment by a jury to secure confinement in the custody of the Department of Mental Health (“DMH”) as a sexually violent predator (“SVP”). See §§ 632.480-632.507. In his sole point relied on, Appellant maintains the Probate Division of the Circuit Court (“the probate court”) erred in denying his request to submit Jury Instruction 5B which included a definition of clear and convincing evidence. We affirm the judgment of the probate court.

On March 7, 2008, the State of Missouri filed a “Petition” against Appellant to have him civilly committed due to his history of sexually abusing children. A trial was held from April 21, 2009, through April 23, 2009. At the first jury instruction conference, Jury Instruction 5 was submitted by the State. Jury Instruction 5 stated:

[i]n these instructions, you are told that your finding depends on whether or not you believe certain propositions of fact submitted to you. The burden is upon [the State] to cause you to believe by clear and convincing evidence that [Appellant] is a[SVP]. In determining whether or not you believe any such proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. If the evidence in the case does not cause you to believe a particular proposition submitted, then you [cannot] return a finding requiring belief of that proposition.

Having already raised a general objection to all of the instructions proffered by the State, Appellant submitted Jury Instruction 5B as an alternative to the State’s Jury Instruction 5. Jury Instruction 5B stated:

[i]n these instructions, you are told that your finding depends on whether or not you believe certain propositions of fact submitted to you. The burden is upon [the State] to cause you to believe by clear and convincing evidence that [Appellant] is a[SVP]. In determining whether or not you believe any such proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. If the evidence in the case does not cause you to believe a particular proposition submitted, then you [cannot] return a finding requiring belief of that proposition.
Clear and convincing evidence means that you are clearly convinced of the affirmative of the proposition to be proved. This does not mean that there may not be contrary evidence.
For evidence to be clear and convincing it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and your mind is left with an abiding conviction that the evidence is true. If you are not so convinced[,] you must give [Appellant] the benefit of the doubt and find that he is not a[SVP].

Counsel for Appellant then stated he had an objection to Jury Instruction 5 “given the [language in the] verdict directing]” instruction. The following colloquy then occurred:

COUNSEL FOR APPELLANT: We proffer this instruction in the belief[] that it is not improper under the law to instruct jurors that there is no presumption that they should find that [Appellant] meets the criteria for involuntary commitment under the [SVP] statute. Our position is that when jurors are told that someone is confined pending such a trial and that confinement has lasted up to a year, they’re likely to draw an inference that there’s some kind of really strong reason to keep him in confinement and that that becomes a reason in their mind to think that he ought to be confined indefinitely. I think that it is important that they be instructed that they should not presume that the State should win this lawsuit, they should not presume that [Appellant] meets these criteria that he’s alleged to meet, and we think that in the absence of an instruction to remind them of that true legal fact that they are unguided in their decision-making in a way that could imperil the fairness of the trial.
And so as a matter of due process of law under the Fourteenth Amendment to the Constitution of the United States and Article I, Section 10, of the Missouri Constitution, we respectfully submit this instruction as necessary.
THE COURT: Thank you.
And having hear[d] argument of counsel, the [probate court] refuses to give the instruction.
Instruction [5] B tendered by [Appellant], [Missouri Approved Instruction] 3.07 modified, [the State] objects; is that correct?
THE STATE: Yes, Your Honor. [The State] objects on the basis of recent Missouri Supreme Court law, specifically In re: Weaver and Van Orden, companion cases in which the Missouri Supreme Court has addressed the issue of defining clear and convincing evidence and has ruled that those terms ought to be given their ordinary meaning, and it would not be proper to instruct or to give the jury a definition of those terms.
THE COURT: And, [Counsel for Appellant], would you like to speak to your instruction?
COUNSEL FOR APPELLANT: Thank you.
Again, Your Honor, we feel that due process of law under the Fourteenth Amendment to the United States Constitution and Article I, Section 10, of Missouri’s Constitution require a definition of the standard of proof that the State must meet when it seeks to take the liberty of one of its citizens. As a matter of due process, people ought to know how high the standard of proof is under the law. In the absence of a definition, they won’t know and their discretion will be unbridled as to the matter of where they’re going to set the bar. They could set it anywhere, they can lower the standard as much as they want, and there is no restraint within the instructions to tell them they shouldn’t do that.
We fail to understand the legal logic of the Van Orden decision, and we respectfully submit that if considered in the light of due process of law and the uncertainty of the legal standard that the jury must abide by and follow for assessing the weight of the State’s evidence that a fair trial mil not result. THE COURT: Thank you.
And the [probate court] refuses to give that instruction.

At a second instruction conference held later in the trial, counsel for Appellant again objected to Jury Instruction No. 5. This time he objected on the “ground of the averments of [his] motions to direct the verdict ....” The trial court again denied Appellant’s request to submit his Jury Instruction 5B.

During its deliberations, the jury requested it be given a definition of “clear and convincing evidence.” After consultation with both sides, the probate court instructed the jury that “[t]he jury has the instructions. You are expected to follow those instructions.”

Following deliberations, the jury found that Appellant “is a[SVP]” and Appellant was then committed by the probate court to the custody of the DMH “until such time as [Appellant’s] mental abnormality has so changed that he is safe to be at large.” Appellant then filed a “Renewal of Motions to Dismiss and in the Alternative, Motion for Judgment Nothwithstanding the Verdict, or for New Trial” which included his complaint relating to the giving of Jury Instruction 5 instead of his Jury Instruction 5B. This motion was denied by the trial court. This appeal followed.

In his sole point relied on, Appellant asserts the probate court abused its discretion in submitting the State’s Jury Instruction 5 to the jury and in refusing to submit his Jury Instruction 5B to the jury because such a ruling violated his “right to due process of law and a fair trial guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution .... ” Specifically, he maintains the probate court’s ruling was in error because

the offered instruction contained a definition not provided in Instruction No. 5 of the legal term ‘clear and convincing evidence,’ to provide the jurors the context in which to determine whether the State had carried its burden of proof that [Appellant] is subject to commitment as a[SVP], and the instructions given failed to adequately instruct the jurors because during deliberations the jurors asked for a definition of ‘clear and convincing.’

Appellant’s argument has already been addressed by the Supreme Court of Missouri in the combined cases of In the Matter of the Care and Treatment of John R. Van Orden, and In the Matter of the Care and Treatment of Richard Wheeler, 271 S.W.3d 579 (Mo. banc 2008) (“Van Orden”). In Van Orden, the appellant argued “that the burden of proof of clear and convincing evidence must be defined in the jury instructions and that the trial court abused its discretion in rejecting his proposed jury instructions.” Id. at 586. Reciting that such decisions are within the trial court’s sound discretion, the Van Or-den court noted that

Rule 70.02(b)[, Missouri Court Rules (2008),] provides that the instructions should be ‘simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.’ Legal or technical words occurring in the instructions should be defined, but the meaning of ordinary words used in their usual or conventional sense need not be defined. Further, a short, simple instruction on the burden of proof is preferred.

Id. (internal citations omitted). Accordingly, it concluded that

‘[c]lear and convincing evidence’ requires no further defining. The words are commonly used and readily understandable, and the phrase provides the jury with sufficient instruction on the applicable burden of proof. The additional phrases offered by [the appellant] only would increase the possibility of confusion and complicate the instructions.

Id. The Supreme Court of Missouri found that the trial court did not err in rejecting the appellant’s proposed jury instruction. Id.

The issue raised by Appellant has been addressed and decided by the Supreme Court of Missouri in Van Orden and this reviewing Court is “ ‘constitutionally bound to follow the most recent controlling decision of the Supreme Court of Missouri.’ ” Warren v. State, 291 S.W.3d 246, 249 (Mo.App.2009) (quoting Savannah Place, Ltd. v. Heidelberg, 164 S.W.3d 64, 68 (Mo.App.2005)). The trial court was correct in denying Appellant’s request to submit Jury Instruction 5B to the jury and in allowing the State to present Jury Instruction 5. Appellant’s point is denied.

The judgment of the probate court is affirmed.

BATES, P.J., and BURRELL, J„ Concur.

      . Unless otherwise stated, all statutory refer-enees are to RSMo Cum.Supp.2007.

      . As Appellant does not challenge the sufficiency of the evidence to support his commitment, we need- not recite the facts detailing the various heinous acts which led to his commitment.

      . A copy of this motion is not before this Court.

      4. We note the State incorrectly urges this point relied on was not preserved below. In our review of the record, we find that it was properly preserved by objection at trial and by inclusion in the motion for new trial; accordingly, we shall address it on its merits.

      . Similarly to Appellant in the present matter, the appellant in Van Orden, 271 S.W.3d at 584, argued that the instruction should include the following language:
      [c]lear and convincing evidence means that you are clearly convinced of the affirmative of the proposition to be proved. This does not mean that there may not be contrary evidence. For evidence to be clear and convincing it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and your mind is left with unabiding conviction that the evidence is true.


text:
    BYRON PARTNERS, LLC, Appellant, v. Robert MCMILLEN and Teresa McMillen, Respondents.
    No. ED 93470.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 13, 2010.
    Sean P. O’Hanlon, St. Louis, MO, for Appellant.
    M.L. Jack Davis, Park Hills, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J. and ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ.
   ORDER

PER CURIAM.

Plaintiff, Byron Partners, LLC (“Byron Partners”), appeals from the judgment in favor of defendants, Robert and Teresa McMillen (collectively referred to as “the McMillens”), on Byron Partners’ claim for unlawful detainer. Byron Partners argues the trial court: (1) erred in admitting the hearsay testimony of Robert Andel (“An-del”); (2) erroneously declared or applied Missouri’s unlawful detainer statutes; and (3) erred because its verdict was against the weight of the evidence.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


author: GLENN A. NORTON, Presiding Judge.

text:
    Tyran EVANS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93179.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 13, 2010.
    Gwenda Renee’ Robinson, District Defender, Louis, MO, for Appellant.
    Chris Roster, Mary H. Moore, Attorney General, Assistant Attorney General, Jefferson City, MO, for Respondent.
   OPINION

GLENN A. NORTON, Presiding Judge.

Tyran Evans appeals the judgment denying his Rule 24.035 motion for post-conviction relief. We affirm.

I. BACKGROUND

In July 2006, Evans and Kenneth Good-son, armed with guns, approached three people outside a nightclub in the City of St. Louis. After Evans and Goodson demanded the purses and wallet of the victims, one of the victims took Goodson’s gun and Evans shot the victim. Evans was ultimately charged with three counts of first-degree robbery and three counts of armed criminal action. In April 2008, Evans pled guilty to all of the charges. Evans was sentenced to fifteen years for each first-degree robbery charge and five years for each armed criminal action charge, the sentences to all run concurrently.

Evans subsequently filed a Rule 24.035 motion for post-conviction relief, which the motion court denied. The motion court concluded that Evans’s claim for post-conviction relief was without merit because his claim of ineffective assistance of plea counsel was refuted by the record of the plea hearing. Evans appeals.

II. DISCUSSION

A. Standard of Review

We review the denial of a Rule 24.035 motion for post-conviction relief to determine only whether the findings of fact and conclusions of law of the motion court are clearly erroneous. Rule 24.035(k); Mullins v. State, 262 S.W.3d 682, 684 (Mo.App. E.D.2008). Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made. Mullins, 262 S.W.3d at 684.

B. The Motion Court did not Clearly Err in Denying Evans’s Rule 24.035 Motion for Post-Conviction Relief

In Evans’s sole point on appeal, he claims the motion court clearly erred in denying his motion for post-conviction relief because plea counsel was ineffective. Specifically, Evans claims as a result of plea counsel’s assurances he pled guilty under the mistaken belief the court would impose concurrent three-year sentences for the armed criminal action charges, suspend the execution of his sentences on the robbery charges, and place him on five years probation.

Generally, in order to establish a claim of ineffective assistance of counsel, a movant must show that counsel’s performance failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney, and as a result the movant was prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Skillicorn v. State, 22 S.W.3d 678, 681 (Mo. banc 2000). However, “[b]y pleading guilty, [Evans] waived all errors except those which affect the voluntariness of the pleas or the understanding with which the pleas were given. Any claim of ineffective assistance of counsel is immaterial except to the extent it impinged upon the voluntariness and knowledge with which the plea of guilty was made.” Jenkins v. State, 788 S.W.2d 536, 537 (Mo.App. S.D.1990). Evans must prove his claim by a preponderance of the evidence. Rule 24.035(i).

“When a movant bases an ineffective assistance of counsel claim on an allegation that [he] pleaded guilty because of a mistaken belief about the sentence, the test is whether a reasonable basis existed in the record for that belief.” Castor v. State, 245 S.W.3d 909, 913 (Mo.App. E.D.2008). The mere expectation that a mov-ant will receive a lesser sentence does not render a plea involuntary. Jones v. State, 211 S.W.3d 210, 213 (Mo.App. S.D.2007).

Here, during the plea hearing, the State recommended concurrent sentences totaling twenty years, and the plea court specifically told Evans he would be receiving concurrent sentences totaling fifteen years. As previously discussed, Evans was ultimately sentenced to fifteen years for each first-degree robbery charge and five years for each armed criminal action charge, the sentences to all run concurrently. During the plea hearing, Evans stated he was not promised anything in return for pleading guilty, and he was not promised a different sentence. We find that no reasonable basis existed in the record of the plea hearing for Evans’s belief that he would receive a lesser sentence. Therefore, the motion court did not clearly err in concluding that Evans’s ineffective assistance of counsel claim was without merit. Point denied.

III. CONCLUSION

The judgment is affirmed.

MARY K. HOFF and LAWRENCE E. MOONEY, JJ., concur.

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