author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Faron Ross COLLINS, Appellant.
    No. SC 90839.
    Supreme Court of Missouri, En Banc.
    Jan. 11, 2011.

      Craig A. Johnston, Public Defender’s Office, Columbia, for Collins.
    James B. Farnsworth, Attorney General’s Office, Jefferson City, for The State.
   PER CURIAM.

Faron Ross Collins appeals his conviction for driving while intoxicated (DWI), section 577.010, following a bench trial in the Circuit Court of Douglas County. Mr. Collins was sentenced as a chronic DWI offender under section 577.023.1(2) to a five-year prison sentence, concurrent with a one-year sentence for driving while suspended (DWS). The state concedes that the trial court erred in finding that Mr. Collins was a chronic DWI offender because the state’s evidence was silent about whether Mr. Collins had been represented by counsel or waived counsel in the cases in which he previously was convicted. The sole issue on appeal is the appropriate remedy for this error. Under section 577.023.9, because the state did not prove any prior convictions or pleas of guilty, the appropriate remedy is vacation of Mr. Collins’s sentence and remand for re-sentencing on the class B misdemeanor of DWI.

Factual and Procedural Background

Mr. Collins does not challenge the sufficiency of the evidence to prove that he was guilty of DWI. Rather, he challenges the sufficiency of the evidence offered to prove that he is a chronic DWI offender, as defined in section 577.023.1(2). Therefore, only the facts dispositive to the issue on appeal will be discussed.

In the light most favorable to the judgment, the evidence shows that on September 3, 2006, Mr. Collins was arrested for DWI. He was charged subsequently with one count of DWI as a chronic offender, under sections 577.010 and 577.023, and one count of DWS, under section 302.321. Mr. Collins pleaded guilty to DWS and, after a September 25, 2008 bench trial, he was found guilty of DWI.

During the state’s presentation of evidence at trial, it offered a certified copy of Mr. Collins’s driving record as evidence of his prior convictions to prove that Mr. Collins was a chronic DWI offender under section 577.023.1(2)(a). The exhibit reflected eight prior convictions for DWI or driving with excessive blood-alcohol content. The exhibit did not specify if Mr. Collins was represented by counsel or waived counsel during any of the proceedings in which he was convicted. Mr. Collins did not object to the exhibit or argue to the trial court that the evidence was insufficient to prove that he was a chronic offender.

After hearing the evidence and Mr. Collins’s argument that the state failed to prove beyond a reasonable doubt that he was driving in an intoxicated condition, the trial court found that Mr. Collins was guilty of DWI and that he was a chronic offender. On December 2, 2008, the trial court sentenced him to five years in prison, which was the minimum sentence for a class B felony. The trial court also sentenced Mr. Collins to one year in the county jail for the DWS, to run concurrently with the five-year sentence for DWI.

Mr. Collins appealed. After opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10.

Standard of Review

Because Mr. Collins failed to object to the trial court’s finding that he was a chronic driving-while-intoxicated offender, his claim of error was not preserved. A claim that a defendant failed to preserve can be reviewed only for plain error. State v. Severe, 307 S.W.3d 640, 642 (Mo. banc 2010). Rule 30.20 allows an appellate court to conduct plain error review “when the court finds that manifest injustice or miscarriage of justice has resulted” from the trial court error. When a defendant is sentenced to a term of punishment greater than the maximum sentence for the offense, the sentencing error constitutes a manifest injustice warranting plain error review. Severe, 307 S.W.3d at 642.

Analysis

At the time of Mr. Collins’s conviction, section 577.023 required the state to prove that Mr. Collins was represented or waived representation during the proceedings for his prior convictions to find Mr. Collins was a chronic offender. That version of section 577.023.l(2)(a) defines a chronic offender as “a person who has pleaded guilty to or has been found guilty of four or more intoxication-related traffic offenses[.]” It also provides that an “intoxicated-related traffic offense” includes “driving while intoxicated ... or driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance, where the defendant was represented by or waived the right to an attorney in writing.” Section 577.023.1(3). Under the statute, for a defendant to be convicted as a chronic offender, (1) the information or indictment must plead all essential facts warranting such a finding, section 577.023.7(1); (2) evidence must establish “sufficient facts pleaded” to warrant a finding beyond a reasonable doubt that the defendant is a chronic offender, section 577.023.7(2); (3) the court must make findings of fact that warrant such a finding beyond a reasonable doubt, section 577.023.7(3); and, (4) in a court-tried case, the presentation of evidence and court findings must be done prior to sentencing. Section 577.023.9.

The state concedes there was no evidence at trial that Mr. Collins was represented by or waived the right to an attorney for his prior intoxication-related traffic offenses, so the state failed to prove facts essential to a finding that Mr. Collins was a chronic offender. The trial court erred, therefore, in finding Mr. Collins to be a chronic offender under section 577.023 and in enhancing his offense from a class B misdemeanor to a class B felony.

Mr. Collins argues that the proper remedy for the trial court’s error is remand for sentencing on the offense of class B misdemeanor of DWI because that was the offense the state proved during the trial. The state argues that, on remand to the trial court, it should be permitted to present additional evidence to prove that Mr. Collins is a chronic offender under section 577.023. The Court consistently has rejected this argument in the context of section 558.021, which contains virtually identical language to section 577.023. State v. Emery, 95 S.W.3d 98, 101-02 (Mo. banc 2003); State v. Teer, 275 S.W.3d 258, 262 (Mo. banc 2009); Severe, 307 S.W.3d at 644-45.

In Emery, the Court held that allowing the state to present evidence of a defendant’s prior and persistent offender status on remand would violate the timing requirement of section 558.021.2. 95 S.W.3d at 101. The prosecutor in Emery, like in this case, did not even attempt to do what the statute required by adducing evidence that the defendant was represented or waived representation for his intoxication-related driving offenses. The Court cited State v. Cullen, 39 S.W.3d 899 (Mo.App.2001), which held that to permit additional evidence of prior driving-while-intoxicated offenses on remand would reward prosecu-torial laxity with another opportunity to make a case. See id. at 101-02.

Reemphasizing the timing requirement, in Teer, this Court held that the timing requirement found in the plain language of section 558.021.2 creates a mandate requiring the state to plead and prove the status prior to submission of the case to the jury. 275 S.W.3d at 261-62. Most recently, in Severe, this Court held that allowing the state to present new evidence of the defendant’s prior convictions would give the state “two bites of the apple” and that, under the timing requirement of the statute, the state is foreclosed from offering any additional evidence at re-sentencing. 307 S.W.3d at 644-45.

The state recognizes these cases but asserts that they are not controlling because the prior holdings were made in jury trials. The state argues that the timing requirement that is mandated by the statute and those cases does not apply to court-tried cases. The state argues that the “two fundamentally different timing requirements [of jury-tried and court-tried cases] should not be interpreted identically.”

For guidance as to whether the rule of Emery, Teer, and Severe that the statutory timing requirement for the presentation of evidence precludes evidence on remand applies equally to court-tried cases, State v. Craig is instructive. 287 S.W.3d 676 (Mo. banc 2009). In Craig, this Court vacated the defendant’s sentence as an aggravated driving-while-intoxicated offender after the state failed to prove beyond a reasonable doubt that the defendant had three intoxication-related driving offenses. Id. at 682. Like in the jury-tried cases, the Court in Craig, a court-tried case, imposed the remedy of vacating the judgment and remanding for re-sentencing of the defendant as a persistent offender, what the state had proved beyond a reasonable doubt in the trial. Id. Precedent persuades that, on remand, the state does not receive a second opportunity to prove its case.

Conclusion

The state failed to adduce, prior to sentencing, the necessary evidence to prove that Mr. Collins is a chronic DWI offender. Therefore, the trial court erroneously found Mr. Collins guilty of the class B felony of DWI and sentenced him to a term of imprisonment authorized for that offense. Mr. Collins’s sentence is vacated. On remand, he is to be re-sentenced for the class B misdemeanor offense of DWI. The maximum term of imprisonment for a class B misdemeanor is “not to exceed six months.” Section 558.011.1. Because Mr. Collins already has served a term of imprisonment in excess of the maximum time of incarceration authorized for a class B misdemeanor, he is ordered released from his sentence on this DWI offense and, if otherwise eligible for release, he be released on his own recognizance pending re-sentencing.

All concur.

      . The version of the statute effective on the date of the DWI offense is the applicable statute. State v. Coomer, 888 S.W.2d 356, 358-60 (Mo.App.1994). In this case, Mr. Collins was arrested on September 3, 2006. Therefore, all statutory citations are to RSMo Supp.2006. All of the applicable statutes subsequently have been amended.

      . Section 577.010.2 provides that "[d]riving while intoxicated is for the first offense a class B misdemeanor.” However, any person found guilty of a violation of section 577.010 "who is alleged and proved to be a chronic offender shall be guilty of a class B felony.” Section 577.023.5.

      . Mr. Collins’s case has reached this Court twice on transfer. After his trial, Mr. Collins timely filed nodce of appeal. The court of appeals heard his case and rendered its first decision December 22, 2009. On March 2, 2010, this Court granted transfer and then retransferred the case for reconsideration in light of State v. Severe, 307 S.W.3d 640 (Mo. banc 2010). After the court of appeals entered its second decision March 29, 2010, this Court again granted transfer.

      . Mr. Collins raises two other claims on appeal. First, he claims that the information inadequately pleaded "all essential facts” and, second, he claims that the state failed to prove that he had "pleaded guilty to or had been found guilty of” four prior DWI or BAC offenses. Regarding the alleged information insufficiency, when a defendant objects to the sufficiency of the charging document only after he already has been convicted, the charging document "will be deemed insufficient only if it is so defective that (1) it does not by any reasonable construction charge the offense of which the defendant was convicted, or (2) the substantial rights of the defendant to prepare a defense and plead former jeopardy in the event of acquittal are prejudiced.” State v. Briscoe, 847 S.W.2d 792, 794 (Mo. banc 1993). The defendant also must establish actual prejudice. Id. The information clearly states that the state was charging Mr. Collins as a chronic DWI offender, and it listed the prior convictions on which the state planned to rely on to prove the chronic offender status. Mr. Collins did not allege that his defense was prejudiced by any alleged deficiency in the information. Therefore, this claim is without merit.
      Regarding the claim that the state failed to prove that he had "pleaded guilty to or had been found guilty of” four prior DWI or BAC offenses, Mr. Collins does not recognize that a guilty plea or a finding of guilt is a prerequisite to a conviction. See State v. Frey, 459 S.W.2d 359, 361 (Mo.1970). Mr. Collins's driving record, which plainly listed eight pri- or convictions, establishes that Mr. Collins pleaded guilty to or was found guilty to those offenses. This claim is also without merit.

      . Section 558.021.2 states:
      In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of its hearing, except the facts required by subdivision (1) of subsection 4 of section 558.016 may be established and found at a later time, but prior to sentencing, and may be established by judicial notice of prior testimony before the jury.

        Section 577.023.6 states: "In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of its hearing.”
      Section 558.021.3 states:
      In a trial without a jury or upon a plea of guilty, the court may defer the proof and findings of such facts to a later time, but prior to sentencing. The facts required by subdivision (1) of subsection 4 of section 558.016 may be established by judicial notice of prior testimony or the plea of guilty.
      Section 577.023.9 states: “In a trial without a jury or upon a plea of guilty, the court may defer the proof in findings of such facts to a later time, but prior to sentencing.”

      . The state also relies on the premise that once a sentence is vacated, the sentence is to be regarded as though it never existed. Calvin v. Mo. Dep’t of Corn, 277 S.W.3d 282, 288 (Mo.App.2009). The state argues that, under this concept, allowing the state to present additional evidence at re-sentencing comports with the plain language of section 577.023.9 because such presentation of evidence is still "prior to sentencing." This argument simply does not comport with the plain language of the statute, which makes no mention of a vacated sentence. Adopting this argument would require this Court to add language to the statute. "This Court may not engraft upon the statute provisions which do not appear in explicit words or by implication from othe[r] words in the statute.” Metro Auto Auction v. Dir. of Revenue, 707 S.W.2d 397, 402 (Mo. banc 1986) (internal citation omitted).

      . Even if on re-sentencing the trial court chooses to run his DWS and DWI sentences consecutively, Mr. Collins still has served more than the maximum time of incarceration allowed under the statute.


source: Caselaw Access Project

license: Public Domain

text:
    Antonio SPEED, Appellant, v. LM SERVICES CORPORATION FOR SLAH, LLC and Division of Employment Security, Respondents.
    No. ED 93794.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 4, 2010.
    Antonio Speed, pro se.
    Larry R. Ruhmann, for Respondent Division of Employment Security.
    Before KENNETH M. ROMINES, C.J., ROY L. RICHTER, J., and WILLIAM L. SYLER, Sp. J.
   ORDER

PER CURIAM.

Antonio Speed (“Claimant”) appeals from the judgment of the Labor and Industrial Relations Commission (“the Commission”) affirming the decision of the Division of Employment Security (“the Division”) to deny him unemployment benefits. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Thomas STORIE, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93011.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 4, 2010.
    Andrew E. Zleit, for Appellant.
    Chris Koster, Atty. Gen., Shaun Mackel-prang and Robert Bartholomew, Jr., Jefferson City, for Respondent.
    Before KENNETH M. ROMINES, C.J., ROY L. RICHTER, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Thomas Storie appeals the motion court’s denial of his Rule 24.035 motion for post-conviction relief without an evidentia-ry hearing. We presume the parties’ familiarity with the facts and therefore need not recite them. We have reviewed the parties’ briefs and the record on appeal and find no error.

An opinion would have no precedential value. The trial court’s judgment is affirmed. 84.16(b).


text:
    STATE of Missouri, Respondent, v. Clint Elliot HIPKINS, Appellant.
    No. ED 93302.
    Missouri Court of Appeals, Eastern District, Northern Division.
    May 4, 2010.
    Stephen R. Porter, for appellant.
    Chris Koster, Atty. Gen., Shaun Mackel-prang and Daniel McPherson, Jefferson City, for respondent.
    Before: ROY L. RICHTER, P.J., ROBERT G. DOWD, JR., J., and KURT S. ODENWALD, J.
   ORDER

PER CURIAM.

Clint Elliott Hipkins (Defendant) appeals from the trial court’s judgment following his conviction by a jury, of one count of felony possession of a controlled substance, in violation of Section 195.202, RSMo 2000, one count of misdemeanor possession of a controlled substance, in violation of Section 195.202, and one count of unlawful use of drug paraphernalia, in violation of Section 195.233. The trial court sentenced Defendant to ten years of imprisonment in the Missouri Department of Corrections for the felony drug possession charge, to run concurrent with 120 days of imprisonment in the county jail for the other two counts.

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 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).

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


text:
    Constance DAILY, Respondent, v. DUNCAN AVENUE PROPERTIES, INC., Appellant.
    No. ED 93276.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 4, 2010.
    Russell Makepeace, for appellant.
    Thomas Gregory, respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Duncan Avenue Properties, Inc., appeals from the judgment entered by the trial court on a jury verdict awarding damages to the plaintiff, Constance Daily. A written opinion would have no precedential value. We have furnished the parties with a memorandum, for their information only, explaining the reasons for our decision. We affirm. Rule 84.16(b)(5).


text:
    Bobby COLLINS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93703.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 4, 2010.
    Brocea L. Smith, for appellant.
    Chris Koster, Atty. Gen., Shaun Mackel-prang and Dora Fichter, Jefferson City, for respondent.
    Before KENNETH M. ROMINES, C.J., ROY L. RICHTER, J., and WILLIAM L. SYLER, Sp. J.
   ORDER

PER CURIAM.

Bobby Collins appeals the motion court’s denial of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed pursuant to Rule 84.16(b).


author: ROY L. RICHTER, Chief Judge.

text:
    Ronald MORRIS, Claimant/Appellant, v. PREFERRED MEAL SYSTEMS, INC., and Division of Employment Security, Respondents.
    No. ED 95428.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 9, 2010.
    Ronald Morris, St. Louis, MO, pro se.
    Michael Pritchett, Jefferson City, MO, for Respondent.
    Preferred Meal Systems, St. Louis, MO, pro se.
   ROY L. RICHTER, Chief Judge.

Ronald Morris (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision denying his application for unemployment benefits. We dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded that Claimant was ineligible for unemployment benefits. Claimant appealed to the Appeals Tribunal, which dismissed his appeal. Claimant then filed an application for review with the Commission, which issued an order affirming the Appeals Tribunal’s decision. Claimant has now filed a notice of appeal to this Court. The Division has filed a motion to dismiss Claimant’s appeal, asserting it is untimely. Claimant has not filed a response to the motion.

The right of appeal is purely statutory and where statutes do not give such a right, no appeal exists. Labrier v. Anheuser Ford, Inc., 621 S.W.2d 51, 53 (Mo. banc 1981). Section 288.210, RSMo 2000, requires that an aggrieved party’s notice of appeal be filed with the Commission within twenty days after the decision of the Commission becomes final. The decision of the Commission becomes final ten days after the date of mailing of the decision to the parties. Section 288.200.2, RSMo 2000.

Here, the Commission mailed its decision to Claimant on July 12, 2010. Therefore, the notice of appeal to this Court was due on or before August 11, 2010. Sections 288.200.2, 288.210. Claimant faxed his notice of appeal to the Commission on August 30, 2010. As a result, Claimant’s notice of appeal is untimely under section 288.200. The unemployment statutes do not provide for the late filing of the notice of appeal and do not recognize any exceptions for filing out of time. McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). Therefore, our only recourse is to dismiss the appeal.

The Division’s motion to dismiss is granted. The appeal is dismissed.

KURT S. ODENWALD and GARY M. GAERTNER, JR., JJ., concur.


author: KURT S. ODENWALD, Presiding Judge.

text:
    ASHFORD CONDOMINIUM, INC. a/k/a Ashford Condominium Owners’ Association, Appellants, v. HORNER & SHIFRIN, INC., and Lamb Construction Company, LLC, Respondents.
    No. ED 94645.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 16, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      Steve Koslovsky, LLC, St. Louis, MO, for Appellant.
    Philip J. Christofferson, Cockriel & Christofferson, LLC, St. Louis, MO, for Respondent Horner & Shifrin, Inc.
    R.C. Wuestling, M. Adina Johnson, Matthew T. Nagel, Wuestling & James, L.C., St. Louis, MO, for Respondent Lamb Construction Company, LLC.
   KURT S. ODENWALD, Presiding Judge.

Introduction

Ashford Condominium, Inc. (Ashford) appeals from the judgment of the trial court granting summary judgment in favor of defendants Horner & Shifrin, Inc. (Hor-ner) and Lamb Construction Company, LLC (Lamb). In 2008, Ashford filed a petition seeking damages for breach of contract and negligence against Horner and Lamb in connection with repair work performed on exterior structures of the condominium complex in 2000. The trial court found that Ashford’s claims were not brought within the time limits required by law and were barred by the applicable statute of limitations, Section 516.120 RSMo 2000. We affirm the trial court’s judgment.

Factual Background

Ashford is an incorporated association of condominium owners of a condominium development known as Ashford Condominiums. On August 6, 1999, Ashford hired Horner, an engineering firm, to analyze the development’s wooden decks, balconies, and other exterior structures (collectively “decks”) for deterioration and to recommend any necessary remedial work. Horner determined that the decks suffered from “weathering and moisture damage” and recommended several repair options to Ashford. Ashford directed Horner to analyze the decks’ structural columns (hereinafter “columns”) and recommend which columns could be repaired and which columns needed total replacement.

On April 25, 2000, Ashford hired Lamb to, among other things, repair and replace the columns in accordance with Horner’s recommendations. Horner further agreed to provide periodic “inspections” to confirm that the construction tasks performed by Lamb were in fact consistent with its recommendations. Because a decorative trim encased each column, Horner was unable to determine the extent of each column’s damage without Lamb first removing the decorative trim. Once Lamb did so, Horner examined each exposed column and recommended whether it needed to be completely replaced, could be repaired, or was fine as is. Lamb then followed Horner’s replace/repair/leave alone designations and later installed new decorative trim.

On November 27, 2000, Ashford sent a letter to Horner stating that it had “serious concerns” regarding Lamb’s quality of work and was “extremely dissatisfied” with Horner’s ability to “properly inspect” Lamb’s work. Ashford continued to express its dissatisfaction with Horner and Lamb in subsequent correspondence and ultimately terminated Lamb’s contract on March 20, 2001. Because Lamb had not finished painting the decks and caulking the wood joints and nail holes when it was terminated, Ashford hired Rice Painting Co. (Rice Painting) to complete these tasks.

Nearly five years elapsed, and, in 2006, Ashford noticed that certain wooden components of the decks appeared unsightly. On October 19, 2006, Ashford hired another contractor, Raineri Construction, LLC (Raineri), to perform some repairs and repaint the decorative trim that covered the decks’ columns. Upon removing the decorative trim, Raineri discovered deterioration in the columns and notified Ash-ford. Ashford hired engineer Gerald Loesch (Loesch) to investigate this deterioration. Loesch found “considerable rotting as a result of water infiltration,” infiltration that had taken place “gradually over many months as moisture repeatedly penetrate[d] and damage[d] the wood.” Loesch further determined that the decks were structurally unsafe. As a result, Ashford directed Raineri to replace the decks in their entirety.

Procedural Background

Ashford filed its petition in this case against Horner and Lamb on March 14, 2008, and filed an amended petition on October 17, 2008. In its amended petition, Ashford asserted negligence and breach of contract claims. Ashford claimed Horner was negligent in providing engineering services and breached its contract with Ashford because Horner’s plan to repair the decks “failed to specify flashing required to protect wood components against excessive deterioration” and it “failed to properly supervise Lamb in [the] performance of [Lamb’s] work.” Ashford claimed that Lamb negligently provided construction services and breached its contract with Ashford because it failed to install proper flashing and did not follow Hor-ner’s recommendations.

Both Horner and Lamb filed motions for summary judgment. On March 10, 2010, the trial court sustained their summary judgment motions, concluding that the five-year limitation period of Section 516.120 barred each of Ashford’s claims. The trial court found that Ashford had sustained damages that were capable of ascertainment toward the end of 2000. The court explained that “Ashford had actual notice of [Horner] and Lamb’s allegedly negligent acts [] and breaches of contract' in 2000.” At that time, Ashford was aware that “the alleged failure to install flashing would lead to water infiltration and damage.” This awareness of the fact of damage, according to the trial court, triggered the five-year limitation period. This appeal follows.

Point on Appeal

On appeal, Ashford argues that the trial court erred in granting summary judgment for two reasons. First, Ashford contends that whether it possessed knowledge that flashing was not properly installed in 2000 was a disputed fact, thereby precluding the entry of summary judgment. Second, Ashford contends that the damages it suffered as a result of Horner and Lamb’s alleged negligence and contractual breaches were not sustained and capable of ascertainment until October of 2006 when Raineri removed the columns’ decorative trim, uncovered the structural deterioration, and apprised Ashford of the condition of the wooden columns. Consequently, Ashford argues that the 5-year limitations period did not begin to run until October, 2006.

Standard of Review

In an appeal from summary judgment, we review the record in the light most favorable to the party against whom judgment was entered, and our review is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Whether to grant summary judgment is purely an issue of law. Allen v. Kuehnle, 92 S.W.3d 135, 138 (Mo.App.E.D.2002). Because the trial court’s judgment is based upon the record submitted and the law, we need not defer to the trial court. Id. The criteria on appeal for testing the propriety of summary judgment are no different than those employed by the trial court. Id. The movant carries the burden of showing a right to summary judgment flowing from facts about which there is no genuine dispute. Id. The non-movant then must show by affidavit, depositions, or otherwise that one or more material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed. Id.

Discussion

Neither party disputes that the five-year limitation period of Section 516.120 governs Ashford’s claims in this case. Subject to certain exceptions which are inapplicable here, Section 516.120(1) states that contract actions must be brought within five years of their accrual. Section 516.120(4) provides that general tort actions, like Ashford’s negligence claims, must be brought within five years of their accrual. See, e.g., Bus. Men’s Assurance Co. of Am. v. Graham, 984 S.W.2d 501, 503-507 (Mo. banc 1999) (applying Section 516.120 where the owner of a building sued architects and engineers for both negligence and breach of contract). The central question before us is whether Ashford’s petition was timely filed. Ashford’s petition was filed on March 14, 2008. The determinative issue, therefore, is whether Ashford’s claims were sustained and capable of ascertainment before March 14, 2003, five years before Ashford filed its suit against Horner and Lamb.

In Missouri, “the statute of limitations is triggered not by discovery of damage, but by the commencement of the right to sue.” Id. at 507. These two events do not necessarily coincide. Id. at 507. Section 516.100 states that:

[T]he cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.

The Missouri Supreme Court has interpreted Section 516.100’s capable of ascertainment standard to be an objective standard and has held that “the statute of limitations begins to run when the ‘evidence was such to place a reasonably prudent person on notice of a potentially actionable injury.’ Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d 576, 582 (Mo. banc 2006) (quoting Graham, 984 S.W.2d at 507) (emphasis in original). The test to be applied is “when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages.” State ex rel. Marianist Province of the United States v. Ross, 258 S.W.3d 809, 811 (Mo. banc 2008) (citation omitted). Thus, “[i]n order for the statute [of limitations] to accrue, plaintiff must have knowledge of the wrong and at least nominal damage, or [knowledge] of something that puts plaintiff on notice to inquire further.” Gaydos v. Imhoff, 245 S.W.3d 303, 307 (Mo.App. W.D.2008).

The Court has also explained that the phrase “capable of ascertainment” refers to “the fact of damage, rather than to the exact amount of damage.” Graham, 984 S.W.2d at 507; Klemme v. Best, 941 S.W.2d 493, 497 (Mo. banc 1997) (“All possible damages do not have to be known, or even knowable, before the statute accrues.”); Dixon v. Shafton, 649 S.W.2d 435, 438 (Mo. banc 1983) (“The word ‘ascertain’ has always been read as referring to the fact of damage, rather than to the precise amount.”). Thus, “[d]amages are ascertained when the fact of damage appears, not when the extent or amount of damage is determined.” Kennedy v. Microsurgery & Brain Research Inst., 18 S.W.3d 39, 42 (Mo.App. E.D.2000). “When the fact of damage becomes capable of ascertainment, the statute of limitations is put in motion.” Kuehnle, 92 S.W.3d at 139 (emphasis in original) (citation omitted).

In this case, Ashford designated for deposition Harold Zimmerman (Zimmerman) as its corporate representative under Rule 57.03(b)(4). Zimmerman served as the president of Ashford’s board of directors at the time when Ashford hired Horner and Lamb. Zimmerman’s tenure as president lasted for much of the construction project’s duration until he resigned in December of 2000. Under Rule 57.03(b)(4), an organization named as a party “shall designate” a corporate representative to testify on its behalf, and the “persons so designated shall testify as to matters known or reasonably available to the organization.” The statements made by a corporate representative “will be admissible against and binding on the corporate party.” State ex rel. Reif v. Jamison, 271 S.W.3d 549, 551 (Mo. banc 2008).

According to Zimmerman, over the course of the project John Coonrod (Coon-rod) and Jack Kellogg (Kellogg), two Ash-ford residents “knowledgeable about construction business,” regularly kept Ashford apprised of “what was not being done right.” Zimmerman testified that Coonrod and Kellogg “lived in these condos, so they would observe [the project] almost daily.” Zimmerman added that “Kellogg had a camera and he was taking pictures all over the place every single day” and “[ajnytime they’d find something they’d come up to [Zimmerman] and tell [him] what they found and [he would] make a note of it and bring it up at the [Ashford] Board meeting.” The following testimony illustrates the types of concerns of which Ashford was aware toward the end of 2000:

[Question]: Mr. Zimmerman, ... what were those complaints that people had throughout Lamb’s work?
[Answer]: Okay. That the nails were supposed to be countersunk and they were not; flashing was supposed to be taken care of and was not.
[Question]: I’m sorry?
[Answer]: Flashing to prevent water damage was supposed to be done and was not; [ ] the new wood theoretically was not new in a sense, that it was damaged wood that was going in and we saw that. So those are just some of the complaints that we spotted.
[Question]: Were there any others?
[Answer]: There could have been. I don’t remember every — it’s been nine years since I’ve been there.
[Question]: Okay. But people at [Ash-ford] were aware that there was an issue with countersinking nails?
[Answer]: Absolutely.
[Question]: That there was a problem with flashing?
[Answer]: Absolutely.
[Question]: And that there was a problem with installing wood that people thought was damaged or warped?
[Answer]: That’s correct.
[Question]: What was the flashing that was supposed to be taken care of?
[Answer]: I just lcnoio what the guys told me. Remember, I told you about Coonrod and Kellogg?
[Question]: What did they tell you?
[Answer]: Those were the experts. They said flashing had to be done in order to prevent water damage. That’s the word we got at [Ashford], Not being an architect, I can’t tell you that. Not being a construction worker, I can’t tell you that. I can only tell you what I know.
[Question]: So sometime in 2000 Coon-rod and Kellogg come to [Ashford] and they say flashing needs to be done and it’s not being done?
[Answer]: Right.
[Question]: Who do you believe was responsible for not installing that flashing?
[Answer]: Well, primarily the contractor was Lamb, and the supervisor which is Horner [ ], because they were told about [this]....
[Question]: How did Ashford address these complaints with Lamb?
[Answer]: We sent letters.... [W]e sent letters to Horner [ ], so that everybody knew what the situation was, and sometimes we withheld payment,

(emphasis added). One of the letters referenced by Zimmerman in his testimony was dated November 27, 2000, and was directed to Horner’s attention. The letter stated the following:

As you know from the inspection done by [Ashford] on November 14, 2000, [Ashford] has very serious concerns about the workmanship on this project. The specific concerns relate to the carpentry joints, weather proofing and the quality of the painting and caulking that has been done....
Another area of concern to [Ashford] is the inspection work done by Horner [].... [Ashford] is extremely dissatisfied with the work of Horner [ ] in fulfilling its obligations to properly inspect the work done by Lamb and insisting that Lamb follow the contract specifications that Horner [ ] developed.

Both Zimmerman’s deposition testimony and the November 27 letter indicate that as early as 2000 Ashford was aware of, and expressly relayed concerns regarding, the facts its amended petition alleged to constitute negligence and contractual breach, namely Lamb’s inadequate installation of flashing and Horner’s incompetent supervision of Lamb’s work. In addition, Zimmerman’s testimony shows that Ashford specifically knew that poor flashing installation would lead to water damage in the future. Ashford argues that Zimmerman’s recollection was simply erroneous. Ash-ford further asserts that the absence of any explicit mention of the word “flashing” in either the complaint letters or “punch list” sent to Horner and Lamb creates a genuine dispute as to what Ashford actually knew in 2000, thereby defeating summary judgment. We disagree.

When reviewing the pleadings, depositions, and affidavits of this case in the light most favorable to Ashford, we find the record lacks any materials plausibly evidencing a version of events contrary to those articulated by Zimmerman, Ash-ford’s corporate representative. Kuehnle, 92 S.W.3d at 138 (“A ‘genuine issue’ exists when the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.”). Even the deposition testimony and affidavits provided by Ashford’s two additional designated corporate representatives, Mary Layton and Stanley Richert, offer nothing to suggest that Zimmerman’s recollection was inaccurate in any respect. Thus, the fact that Ashford had reason to believe in 2000 that flashing was inadequately installed is above genuine dispute.

Accordingly, our discussion turns to whether Ashford’s awareness of this matter was sufficient to place a reasonably prudent person on notice of a potentially actionable injury, Powel, 197 S.W.3d at 582, thus setting into motion Section 516.120, the applicable five-year statute of limitations. Ashford argues that its damages were not sustained and capable of ascertainment until October 2006, when Raineri discovered the columns’ structural deterioration and brought the matter to Ashford’s attention.

In support of this position, Ashford relies on Linn Reorganized Sell. Dist. v. Butler Mfg. Co., 672 S.W.2d 340 (Mo. banc 1984). In Linn, the plaintiff contracted for the building of a school and fieldhouse. Id. at 341. The fieldhouse’s dome roof was completed in July 1972, but payment due to the sub-contractor who installed the roof was withheld because a leak was discovered immediately. Id. at 341. The remainder of the project continued amid requests that the sub-contractor fix the leak, and a gymnasium floor was installed in November 1972. Id. at 341. The subcontractor neglected to fix the leak, so its contract was terminated in July 1973. Id. at 341. The plaintiff filed suit in October 1977, seeking a judgment for damages to the roof and gymnasium floor. Id. at 341. Although the plaintiff knew that the roof leaked in July 1972, more than five years prior to its time of filing, the Missouri Supreme Court held that Section 516.120’s five-year limitation period did not bar the plaintiffs claims because damages were not capable of ascertainment in July 1972. Id. at 342 (“[T]he mere evidence that the roof leaked from the first day of construction is not supportive of a conclusion that damages as of that time were ascertainable.”). In so holding, the Court relied heavily on the fact that the roof leakage occurred before the entire construction project was completed. Id. at 342. The court reasoned that to require a suit be filed the moment evidence of an alleged faulty condition arose could require a plaintiff to sue long before a lengthy construction project was completed. Id. at 342; see Hasemeier v. Metro Sales, Inc., 699 S.W.2d 439, 442-43 (Mo.App. E.D.1985) (discussing Linn). In addition, Linn accorded weight to the proposition that a “statute of limitations does not begin to run in a contract action until the time allowed for correction of defects has passed.” Linn, 672 S.W.2d at 344; Loeffler v. City of O’Fallon, 71 S.W.3d 638, 642-43 (Mo.App. E.D.2002).

Even if Linn tolls the ascertainment of damages arising from an ongoing construction project until after the project culminates, Ashford’s claims are still untimely. The record indicates that Ashford terminated Lamb’s construction services and completed the project in 2001, still approximately seven years prior to the filing of its petition. Zimmerman’s testimony shows that by that time, Ashford actually knew “[flashing to prevent water damage was supposed to be done and was not [done].” In addition, Ashford specifically expressed in the November 27 letter that, after inspecting the project, it was “extremely dissatisfied with the work of Horner [ ] in fulfilling its obligations to properly inspect the work done by Lamb.” The only matter still unknown to Ashford in 2001 was the extent of water damage inadequate flashing would cause to its wooden decks over time. Yet, knowledge of the extent of damage is not necessary in Missouri to trigger the running of a statute of limitations. Mere knowledge of the fact of damage, such that a reasonable person in the plaintiffs position would be alerted to a potentially actionable injury, is sufficient. Powel, 197 S.W.3d at 582; see, e.g., O’Reilly v. Dock, 929 S.W.2d 297, 301-02 (Mo.App. S.D.1996) (holding that, when plaintiffs knew that window leaks in their home were causing damage but did not know the extent of the damage the leaks had caused, plaintiffs’ damages were sustained and capable of ascertainment); Arst v. Max Barken, Inc., 655 S.W.2d 845, 848 (Mo.App. E.D.1983) (where plaintiffs noticed cracks and a shifting of their foundation and knew who caused this harm in August 1969 yet neglected to employ an expert to determine the extent of damage until August 1979, this Court held that the statute of limitations began to run in August 1969). By Ashford’s corporate representative’s own uncontradicted admission, Ashford possessed knowledge of the fact of damage toward the end of 2000 and early in 2001 when the decks’ project finally culminated.

Moreover, this case is not one where the observations and complaints Ashford made in 2000 regarding Horner and Lamb’s work were of a different nature and/or degree than those of which Ashford complained in 2008 when it filed its petition. Cf. Graham, 984 S.W.2d at 507-08 (holding that, though a plaintiff experienced problems in the 1960s and 1970s with moisture gathering behind the marble panels that clad its office tower, the plaintiffs negligent design/installation claim did not accrue until 1985 when entire panels began to fall from the building); Martin v. Crowley, Wade & Milstead, Inc., 702 S.W.2d 57, 58 (Mo. banc 1985) (where nothing in the record indicated that “plaintiffs knew or should have known of any reason [] to question [the] defendant’s work,” the Court held that damages stemming from the defendant’s negligent surveying services were not capable of ascertainment until plaintiffs discovered the error eight years later). Rather, the record in this case shows that as early as 2000 Ashford specifically took issue with Lamb’s purported inadequate installation of flashing and Horner’s supervision thereof. Yet, Ashford’s petition asserting any claims it may have had regarding these exact complaints was not filed until 2008.

The evidence before us conclusively proves that Ashford had reason to believe that an inadequate installation of flashing plagued the decks’ construction project more than five years prior to the time Ashford filed its petition. Ashford had notice of a potentially actionable injury toward the end of 2000 and early in 2001 when the project was finally completed, but did not file its lawsuit against Horner or Lamb until 2008. By delaying commencement of its suit, Ashford permitted the five-year limitations period of Section 516.120 to foreclose any remedy it may have had against Horner and Lamb on its claims. We hold that summary judgment in favor of Horner and Lamb is supported by the evidence before us. Point denied.

Conclusion

The judgment of the trial court is affirmed.

ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ., Concur.

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

      . All rule citations are to Mo. R. Civ. P.2009, unless otherwise indicated.

      . In its reply brief and at oral argument, Ashford argued that when the Jamison Court referred to a corporate representative’s testimony as "binding” on the represented organization, the Court did not intend to suggest that such testimony was immune from additional evidence demonstrating such testimony's purported inaccuracies. We find this argument to be of no consequence in this case. As our decision makes clear, infra, we find nothing in the record that contradicts the facts to which Zimmerman testified.

      . Lamb’s contract was terminated on March 20, 2001. Rice Painting was hired on April 15, 2001, to complete the painting and caulking work left undone by Lamb.


text:
    INCLINE VILLAGE BOARD OF TRUSTEES, Plaintiff/Respondent, v. Frank ZIENER, Defendant/Appellant.
    No. ED 94482.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 16, 2010.
    Application for Transfer to Supreme Court Denied Dec. 28, 2010.
    Joseph V. Keady, Jr., St. Louis, MO, for Plaintiff/Respondent.
    James G. Nowogrocki, St. Louis, MO, for Defendant/Appellant.
    Before SHERRI B. SULLIVAN, P.J., CLIFFORD H. AHRENS, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Frank Ziener (Appellant) appeals from the judgment entered by the trial court denying his motion to set aside the default judgment entered against him and in favor of Incline Village Board of Trustees. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court did not abuse its discretion in denying Appellant’s motion to set aside the default judgment. In re Marriage of Callahan, 277 S.W.3d 643, 644 (Mo.banc 2009). An extended opinion would have no prece-dential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


author: MARY K. HOFF, Judge.

text:
    Bellesea LASCHOBER and Zsekainah Laschober, Through their Next Friend Brian Laschober and Isabella Buchanan Through her Next Friend Kerry Buchanan, Plaintiffs/Appellants, v. The CITY OF KINLOCH, Defendant/Respondent.
    No. ED 94945.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 16, 2010.
    Rehearing Denied Dec. 28, 2010.

      Gonzalo Andres Fernandes, Devereaux, Stokes, Nolan, Fernandez & Leonard, P.C., St. Louis, MO, for Appellant.
    James Robert Howard, St. Louis, MO, for Respondent.
   OPINION

MARY K. HOFF, Judge.

Bellesea and Zsekainah Laschober, et al. (Plaintiffs) appeal from the grant of summary judgment in favor of the City of Kinloch (Kinloch) on Plaintiffs’ wrongful death action involving Elizabeth Buchanan (Decedent). On appeal, Plaintiffs argue the trial court erred in granting Kinloeh’s motion for summary judgment because there was a genuine dispute as to whether Kinloch had in place a policy of insurance that protected it from liability resulting in a waiver of sovereign immunity. We reverse and remand.

Factual and Procedural Background

This case arises out of a grant of summary judgment entered in favor of Kin-loch. Plaintiffs are the surviving minor children of Decedent. On the evening of July 12, 2009, two Charlack police officers responded to Decedent’s residence after receiving complaints of a domestic disturbance. After interviewing both Decedent and her husband, the two police officers made the determination that Decedent should be taken into protective custody for her own protection. Decedent was taken to the Charlack police department where she was processed and then transferred to the Kinloch jail. In the early morning hours of July 13, 2009, Decedent was found dead, apparently by suicide, in her cell at the Kinloch jail.

On September 9, 2009, Plaintiffs filed their original wrongful death petition alleging various acts of negligence against both Kinloch and the City of Charlack. Plaintiffs later filed their Third Amended Petition and named as defendants various individuals including the two Charlack police officers and the Kinloch law enforcement officer charged with supervising the jail the night Decedent was in custody. In their Third Amended Petition, Plaintiffs alleged various acts of negligence against Kinloch related to how their law enforcement officers handled the care and custody of Decedent when she was taken into protective custody. They also alleged that Kinloch was negligent in failing to implement appropriate guidelines with respect to the handling of inmates who present a suicide risk and failed to properly educate and train staff.

On November 24, 2009, Kinloch filed its motion for summary judgment and memorandum in support thereof and supporting documentation. Plaintiffs subsequently filed their Response to Kinloch’s Motion for Summary Judgment, and Kinloch filed its Reply to Plaintiffs’ Response. The City of Charlack filed a motion for summary judgment also claiming sovereign immunity. On January 28, 2010, the parties argued and submitted the motions for summary judgment. On April 19, 2010, the trial court issued its order granting summary judgment in favor of both Kin-loch and the City of Charlack. Plaintiffs now appeal the trial court’s grant of summary judgment as it relates to Kinloch only.

Standard of Review

Appellate review of summary judgment is de novo. Southers v. City of Farmington, 263 S.W.3d 603, 608 (Mo. banc 2008); ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Southers, 263 S.W.3d at 608. A “genuine issue” that will prevent summary judgment exists where the record shows two plausible, but contradictory, accounts of the essential facts and the “genuine issue” is real, not merely argumentative, imaginary, or frivolous. Id. We review the record in the light most favorable to the party against whom judgment was entered. Id. The movant bears the burden of establishing a legal right to judgment and the absence of any genuine issue of material fact required to support the claimed right to judgment. Id.

Where the parties do not dispute the underlying facts, disputes arising from the interpretation and application of insurance contracts are matters of law for the court. Crossman v. Yacubovich, 290 S.W.3d 775, 778 (Mo.App. E.D.2009). When interpreting an insurance policy, we must determine whether the language is ambiguous, which is a question of law. Id. An ambiguity exists when the contract language is duplicitous, indistinct, or uncertain, leaving its interpretation open to differing reasonable constructions. Allstate Ins. Co. v. Ibrahim, 243 S.W.3d 452, 456 (Mo.App. E.D.2007). Proper interpretation of insurance policies requires that we seek to harmonize all provisions of the policy and to avoid leaving some provisions without function or sense. Id.

Discussion

In their sole point on appeal, Plaintiffs argue the trial court erred in granting summary judgment in favor of Kinloch because there was a genuine issue of material fact as to whether Kinloch had in place a policy of insurance that protected it from liability resulting in a waiver of sovereign immunity. Specifically, Plaintiffs contend that there is coverage under the “Law Enforcement Coverage Form” for Plaintiffs’ claims, and, therefore, Kinloch has waived its sovereign immunity under Section 537.610. Plaintiffs assert that, at a minimum, there exists an ambiguity as to the application, of the jail exclusion within the policy of insurance. We agree.

The common law rule of sovereign immunity has long been recognized by Missouri courts. Southers, 263 S.W.3d at 609. Sovereign immunity is statutorily modified by Section 537.600, which carves out two general exceptions involving automobile accidents and dangerous conditions of property. Section 537.600.1(1) — (2). Section 537.610 establishes a third exception to the general principle of sovereign immunity in instances where the public entity has purchased liability insurance. Section 537.610.

Here, in their Third Amended Petition, Plaintiffs alleged the existence of a policy of insurance that provides to Kinloch liability coverage for the acts alleged in their petition. Kinloch does not dispute that it purchased an insurance policy issued by the Scottsdale Indemnity Company (Scottsdale), which was in effect on the dates of the alleged negligent acts as contained in Plaintiffs’ Third Amended Petition. Kinloch admits that the existence of insurance coverage for Plaintiffs’ claims would waive sovereign immunity under the provisions of Section 537.610.

A review of the Scottsdale insurance policy reveals that it is a single insurance policy issued in favor of Kinloch under policy number PEI0005298 with a policy period running from March 13, 2009, through March 13, 2010. The policy is generally entitled “Public Entity Policy” but contains four separate “coverage forms” that apply to various types of claims. There is a section entitled “Employment Practices Liability Coverage Form Claims Made Coverage,” “General Liability Coverage Form Occurrence Coverage,” “Law Enforcement. Liability Coverage Form Occurrence Coverage,” and “Public Officials Liability Coverage Form Claims Made Coverage.” Each of these “Coverage Forms” has its own definition section as well as exclusions. In addition, the policy has a separate declarations page for each coverage form, which sets out the limits of liability and deductibles under each coverage form.

Plaintiffs contend that their claims would be covered by the “Law Enforcement Liability Coverage Form,” which applies to claims made against Kinloch related to improper or negligent acts of their law enforcement officers. This coverage form states in Section I:

We will pay on behalf of the insured all “loss” resulting from “law enforcement wrongful act(s)” which arise out of and are committed during the course and scope of “law enforcement activities” or which arise out of the ownership, maintenance or use of premises by you for the purpose of conducting “law enforcement activities.”

The definition section of the “Law Enforcement Liability Coverage Form,” found in Section VI, provides two important definitions:

4. “Law enforcement activities” means:
a. Those activities conducted by your Law Enforcement Department or Agency shown in the Law Enforcement Liability Coverage Part Supplemental Declarations; and
b. Departmentally approved activities which are declared in the application for this insurance.
5. “Law enforcement wrongful act” means any actual or alleged act, error or omission, neglect or breach of duty by the insured while conducting “law enforcement activities” which results in:
a. “personal injury”;
b. “bodily injury”;
c. “property damage”.

The definition of “Law enforcement activities” makes reference to those acts shown in the “Law Enforcement Liability Coverage Part Supplemental Declarations.” However, nowhere in the section are the specific activities listed.

Plaintiffs have alleged various acts of negligence against Kinloch related to how their law enforcement officers handled the care and custody of Decedent when she was taken into protective custody on July 12, 2009. Plaintiffs have also alleged negligence as to how Kinloch trains and supervises its law enforcement officers. On appeal, Plaintiffs argue that these acts of negligence are acts clearly within the scope of “law enforcement activities” as defined in the insurance policy. Furthermore, they argue, any ambiguity created by the definition of “law enforcement activities” in the insurance contract must be resolved in favor of Plaintiffs and the term must be given the broadest interpretation possible.

Our review of the insurance policy indicates that it contains a section entitled “Public Entity Policy — Common Policy Conditions” and “Public Entity Policy— Common Liability Exclusions and Common Liability Definitions.” The “Common Liability Exclusions” section states that it applies to the four “coverage forms” that make up the Scottsdale policy. Under Section A, entitled “Common Liability Exclusions,” the policy states: “The following exclusions apply to the liability coverages designated in the Common Policy Declarations. Refer to the individual coverage forms for additional exclusions.” This section then goes on to set out seven exclusions that apply to all four of the coverage forms, including exclusions for pollution, war, asbestos, nuclear energy, dams, eminent domain, and worker’s compensation.

Despite the absence of the jail exclusion in the “Common Liability Exclusions” section, however, Kinloch asserts that it has not waived sovereign immunity under Section 537.610 because there is an exclusion under the “General Liability Coverage Form” for injuries arising out of the “operation, maintenance or use of any jail.” Interestingly, the jail exclusion is not found in the “Law Enforcement Liability Coverage Form” or, as mentioned above, in the “Common Liability Exclusions” section found at the beginning at the “Public Entity Policy.” Plaintiffs insist that if the intent of the insurer had been to have the jail exclusion apply to all areas of coverage, then it would have been included in the section entitled “Common Liability Exclusions.”

To further bolster their argument that the jail exception applies only to general liability coverage and not to all sections of the insurance policy, Plaintiffs point to the following inconsistency: Section II, Paragraph 23 of the “General Liability Coverage Form” sets out an exclusion for any bodily injury, personal injury or property damage arising out of any act or omission of the Kinloch Police Department; however, reading this exclusion to apply beyond the general liability portion of the policy would be in direct conflict with the broad coverage provided by the “Law Enforcement Coverage Form” and would render the entire liability policy issued under the “Law Enforcement Coverage Form” illusory.

Finally, Plaintiffs argue that, even if there is no coverage for Plaintiffs’ claims under the insurance policy, at a minimum, there exists an ambiguity as to the application of the jail exclusion to any coverage form other than the general liability coverage form in which it is found. If the language of an insurance contract is ambiguous or inconsistent, we will construe the ambiguous provisions against the insurer. Allstate Ins. Co., 243 S.W.3d at 456.

Plaintiffs argue that, on the one hand, there is explicit language in the policy that provides for coverage to Kinloch under the “Law Enforcement Coverage Form” but, at the same time, there is a denial of coverage based on the exclusionary language set out in the “General Liability Coverage Form.” Plaintiffs argue that had it been the intent of the insurer to apply this exclusionary language to all liability coverage forms, it would have been included in the section entitled “Common Liability Exclusions,” and not merely the “General Liability Coverage Form” in which it is found. Moreover, Plaintiffs insist that there is no similar exclusionary language in the “Law Enforcement Liability” portion of the insurance policy because none was intended. We find Plaintiffs’ argument persuasive.

Given the record before us, an ambiguity exists as to whether the jail exclusion was intended to be restricted to a particular section of the policy of insurance or applied uniformly. As such, there is a genuine issue of material fact as to the applicability of Kinloch’s insurance policy to the present facts and claims made by Plaintiffs. The trial court erred in granting summary judgment in favor of Kinloch. Point granted.

Conclusion

We reverse the decision of the trial court and remand this matter for further proceedings consistent with this opinion.

GARY M. GAERTNER, Presiding Judge and PATRICIA L. COHEN, Judge, concur.

      . By consent judgment, the parties agreed to allow this motion for summary judgment to apply to Plaintiffs’ Third Amended Petition subsequently filed on March 11, 2010.

      . Unless otherwise indicated, all further statutory references are to RSMo 2000. Citations to Section 537.600 are to RSMo Cum.Supp. 2007, unless otherwise indicated.


author: CYNTHIA L. MARTIN, Judge.

text:
    In the Matter of FORECLOSURE OF LIENS FOR DELINQUENT LAND TAXES BY ACTION IN REM: MANAGER OF REVENUE OF JACKSON COUNTY, MISSOURI, Respondent, The Nigro Family Partnership, LP, Respondent, v. Sandra K. Frey, Appellant.
    No. WD 71978.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2010.
    Rehearing Denied Feb. 1, 2011.

      Shawn E. Stewart, Kansas City, MO for appellant.
    Jacqueline A. Sommer, Kansas City, MO for respondent Manager of Revenue of Jackson County, MO
    John W. Roe and Frank A. Brancato, Kansas City, MO, for respondent The Nig-ro Family Partnership, LP.
    Before Division Three: ALOK AHUJA, Presiding Judge, CYNTHIA L. MARTIN, Judge and GARY D. WITT, Judge.
   CYNTHIA L. MARTIN, Judge.

Sandra Frey appeals the trial court’s judgment setting aside a tax sale at the request of Jackson County, Missouri, as the result of irregularity, accident, or mistake. On appeal, Frey contends that the trial court erred in setting aside the sale because: (1) Jackson County provided notice of the sale and notice of assessed value increases of the property to the former property owner in accordance with statutory requirements such that no irregularity, accident, or mistake existed to warrant setting the sale aside; and (2) the trial court’s order was an impermissible collateral attack on a prior judgment of foreclosure which ordered the sale. The judgment of the trial court is reversed and remanded for further proceedings.

Factual and Procedural Background

On May 19, 2008, pursuant to the provisions of Missouri’s Land Tax Collection Law, sections 141.210 to 141.810, Jackson County, Missouri (“the County”), filed its petition and list of parcels of land encumbered with delinquent taxes with the Circuit Court of Jackson County. The petition listed parcels of land which were delinquent in the payment of taxes to the County for a period of two years or more. Included in the list of delinquent parcels was real property located at 3255 East 18th Street in Kansas City, Missouri (“Property”). The petition listed the Nigro Family Partnership (“the Partnership”) as the name of the last known person in whose name tax bills were charged, or as the last known owner of record of the Property. The address provided in the petition for the Partnership was 968 Chambers Street, Suite 5, Ogden, Utah 84403-5082 (the “Utah address”).

After the petition was filed, the County caused notices of the parcels listed in the petition to be published for four consecutive weeks throughout late June and early July of 2008. On June 2, 2008, the County sent notices of the petition to the last record owner of the delinquent parcels. On August 25, 2008, the trial court entered a judgment, in rem, against many of the parcels, including the Property (the “Foreclosure Judgment”). The court ordered that the Property be sold by the Court Administrator of the County at a public sale for the purpose of satisfying the County’s judgnent for the tax liens.

On July 7, 2009, pursuant to section 141.540, the County mailed a notice of the sale to the Partnership. The County then caused a notice of the sale to be published for four consecutive weeks, which included notice of the sale of the Property. On August 26, 2009, Sandra Frey (“Frey”) purchased the Property at the County’s annual tax foreclosure sale for a sum of $55,949.43.

On October 19, 2009, the County filed an unverified motion to set aside the sale of the Property. Neither the County nor Frey had, prior to the filing of this motion, sought an order confirming the sale pursuant to section 141.580. Thus, at the time the motion to set aside the sale was filed by the County, title to the Property had not yet been delivered to Frey, though the purchase price for the Property had been paid.

The County’s motion alleged that the sale of the Property was the result of irregularity, accident, or mistake in that the County had learned that its records did not reflect the correct address for the Partnership. The County’s motion stated that the Utah address was never the mailing address for the Partnership. The motion offered no explanation for how an incorrect address for the Partnership had been made a part of the County’s records. Notwithstanding, the County asserted that “because of incorrect ownership records, the proper owner did not receive notice of the tax foreclosure suit and sale, as required by Missouri statutes. Nor did it receive notice of assessed value increases as required by Missouri statutes.” The County asked that the court set aside the sale of the Property and to refund the purchase price to Frey. A copy of the motion was not contemporaneously served on Frey.

The trial court summarily entered a judgment on October 27, 2009 (the “Judgment”), finding that the tax sale of the Property was the result of irregularity, accident, or mistake in that the County’s records reflected an “incorrect mailing address” for the Partnership and that the Partnership “did not receive notice of the sale or of assessed value increases” for the Property. The Judgment ordered that the sale of the Property be set aside and directed the Court Administrator to refund the purchase price to Frey.

Frey learned of the Judgment and filed a motion to set aside the Judgment on November 16, 2009. In response to Frey’s motion, the County filed an unverified supplemental and amended motion to set aside the sale of the Property. The supplemental and amended motion reiterated that the Utah address “was never the mailing address” for the Partnership and, in connection with this allegation, attached an affidavit of a County employee along with two pages of computer records relating to the Property. The affidavit stated that the first page of the records “was made on about May 27, 2005 by the Jackson County Assessment Department. This record sets out a change of address made by the Jackson County Assessment Department for the owner of [the Property]” to the Utah address. The affidavit stated that the second page of the records “was made on about December 29, 2008, when the Assessment Department was advised that the Utah address was incorrect. The owner had never been located in Utah. Page 2 indicates a correction to the owner address to: 8535 Donnelly Ave., Kansas City, MO 64157.” The inference apparently intended by the affidavit was that the change of address entered on the records in May 2005 was made in error by the County, through no fault of the Partnership, though this “fact” was not expressly alleged in either the County’s supplemental and amended motion or in the accompanying affidavit.

The County’s supplemental and amended motion also alleged that “the owner of the property was assured by Jackson County that the property would be removed from the 2009 tax sale. Due solely to County error, the property was not removed from the sale.” This allegation was not, however, addressed in the affidavit. Moreover, this allegation did not indicate, among other things, when the conversation occurred, with whom it occurred, how the Partnership came to contact the County, or why the County agreed to remove the Property from the sale.

On January 6, 2010, the trial court denied Frey’s motion to set aside the Judgment. No hearing was conducted prior to the entry of this order. On the same day, Frey filed a supplemental and amended motion to set aside the Judgment and a reply to the County’s supplemental and amended motion to set aside the sale. Frey also filed a motion to confirm the sale pursuant to section 141.580 on January 12, 2010, and requested a hearing. On January 15, 2010, the trial court entered an order denying Frey’s motions.

This appeal by Frey followed. The Partnership’s motion to intervene as a party on appeal was granted.

Standard of Review

In reviewing a court-tried case, the appellate court will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The appellate court must defer to the trial court’s factual determinations and view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment, disregarding all contrary evidence. Langdon v. United Rests., Inc., 105 S.W.3d 882, 886 (Mo.App. W.D.2003). “Questions of law, however, are reserved for the independent judgment of the appellate court without deference to the trial court’s determination.” Id.

Pending Motions

Prior to addressing the merits of Frey’s appeal, we must determine whether Frey has standing to file this appeal. The County filed a motion to dismiss Frey’s appeal, arguing that she lacks standing to appeal the Judgment. Section 512.020 provides that any party to a suit aggrieved by a judgment of the trial court may appeal. Because Frey was not a named party in the underlying proceedings before the trial court, the County argues that she lacks standing to appeal from the Judgment setting aside the sale.

The County’s argument is similar to an argument made by a party in In re Foreclosure of Liens for Delinquent Land Taxes, 226 S.W.3d 250 (Mo.App. E.D.2007). In that case, a party argued that the initial owner of the property could not appeal from the trial court’s judgment dismissing a motion to set aside the tax sale of the owner’s property because the owner was not a party aggrieved by the judgment. Id. at 253. The court on appeal disagreed, noting that “whether a party may appeal is not based on a precise definition or formula, but the circumstances of the party at hand.” Id. at 254. Because the initial owner lost ownership at the tax sale and would regain ownership if the sale was set aside, the court found that the initial owner was an aggrieved party with standing to appeal, even though the initial owner was not a named party in the underlying suit. Id. at 253-54.

After purchasing the Property at the tax sale and paying the purchase price, Frey acquired an interest in the Property. Though that interest had not yet risen to the level of legal title, Frey’s interest in the Property was nonetheless sufficient to afford her standing as a party aggrieved by the Judgment. Similar to the rationale in In re Foreclosure of Liens for Delinquent Land Taxes, the Judgment destroyed Frey’s right to pursue the delivery of legal title by confirmation proceedings. Frey was, therefore, aggrieved by the Judgment, although she was not a party specifically named in the underlying foreclosure suit. Therefore, Frey has standing to appeal the Judgment setting the sale aside, and the County’s motion to dismiss her appeal for lack of standing is denied.

The County also filed a motion seeking to dismiss Frey’s appeal on the basis that her notice of appeal was untimely filed. However, in response, Frey filed a Rule 81.07 motion seeking a special order permitting a late filing of the notice of appeal. Frey filed her motion within six months from the date the Judgment became final and included an affidavit showing that the delay was not due to her culpable negligence, as required by Rule 81.07. Therefore, even if the County is correct and Frey’s notice of appeal was untimely, we grant Frey’s Rule 81.07 motion and treat the notice of appeal as having been timely filed. See Tillis v. City of Branson, 945 S.W.2d 447, 448 (Mo. banc 1997).

Analysis

Points I and II

We now turn to the merits, of Frey’s appeal. In her first and second points on appeal, Frey contends that the trial court erred in setting aside the tax sale on the grounds that the Partnership did not receive notice of the sale or of assessed value increases because the County’s records reflected an incorrect mailing address for the Partnership. Frey argues that the sale should not have been set aside on this basis because the County complied with the applicable statutory notice requirements.

Section 141.440 requires the collector to provide notice of the petition to sell parcels of land due to delinquent taxes by means of certified mail to the person named in the petition as being the last known person in whose name tax bills were charged, or the last known owner of record, and to the address of that person upon the records of the collector. Once a judgment of foreclosure is entered on the petition, the collector may, but is not required to, send notice of the foreclosure judgment in the same manner the collector is required to provide notice of the petition. Section 141.500.2. Finally, section 141.540.5 requires the collector to provide notice of the tax sale by means of certified mail to the person named in the petition as being the last known person in whose name tax bills were charged, or the last known owner of record, and to the address of that person upon the records of the collector. Similarly, section 137.180.1 requires that, whenever the assessor increases the valuation of any real property, the assessor must “notify the record owner of such increase, either in person, or by mail directed to the last known address.”

There is no dispute in this case that the County complied with the literal requirements of the aforesaid notice statutes. It sent all required notices to the address of the Partnership upon the records of the collector. That does not end our inquiry, however. Compliance with the technical statutory requirements for providing notice does not relieve the County of its overarching obligation to insure that its efforts to provide notice satisfy the requirements of due process. The Missouri Supreme Court has observed that “ ‘due process does not require that a property owner receive actual notice before the government may take his property.’ ” Schlereth v. Hardy, 280 S.W.3d 47, 52 (Mo. banc 2009) (quoting Jones v. Flowers, 547 U.S. 220, 226, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006)). Instead, the essential test to be applied is whether the notice “is reasonably calculated to reach the interested parties.” Garzee v. Sauro, 639 S.W.2d 830, 832 (Mo.1982) (emphasis added). Missouri courts have held that notice by certified mail in the manner proscribed by Missouri’s Land Tax Collection Law (i.e. to the address of that person upon the records of the collector) is “a mode of notice within the limits of practicality reasonably calculated to reach the interested parties — and hence constitutionally sufficient.” Ferguson v. Jackson Cnty., 688 S.W.2d 407, 410 (Mo.App. W.D.1985) (emphasis added) (internal citations and quotations omitted).

It is Frey’s position that since the County complied with all of the statutory notice requirements of the Missouri Land Tax Collector Law, Ferguson mandates the conclusion that the notices sent by the County to the address of the Partnership upon the records of the collector were “reasonably calculated to reach the [Partnership] parties — and hence constitutionally sufficient” as a matter of law. Id. Frey acknowledges an exception to this principle where a collector may be required to undertake additional investigation to ascertain an owner’s correct address when the collector learns that an address is incorrect in advance of the tax sale by virtue of undeliverable mail notifications. However, Frey claims this exception does not apply here as there was no evidence that the certified mail notices to the Partnership were returned to the County as either unclaimed or undeliverable.

There is authority that could be broadly read to support Frey’s position. In Schwartz v. Dey, 780 S.W.2d 42 (Mo. banc 1989), the former owners of property brought suit to set aside the tax collector’s deed issued following a tax sale, arguing they did not receive constitutionally sufficient notice of the tax sale. The required notices were sent to an address for the owners reflected on the records of the collector which had been drawn from the deed conveying title to the owners. Id. at 42-43. The owners did not contend that the collector knew their address of record was incorrect but, instead, claimed that thez-e wei-e vai'ious scenaz-ios under which the collector could have ascertained the owners’ coirect address. Id. at 44. Although the coui't believed that it would have been possible to locate the property owners’ coirect address, constitutional analysis required the coui't to “balance the interests of the parties and determine whether the collector’s failure to make further attempts to notify [the owners] was unreasonable.” Id. (emphasis added). The court noted that due process does not require the collector to make impi-acticable and extended searches or to undertake extraordinary efforts to discover the location of an owner. Id. at 45. Accordingly, the court found that the scenarios advanced by the owners placed a substantially greater duty on the collector than due process required in that they required the collector to ascertain whether the owners’ publicly recorded address was coirect. Id. at 44-45.

In In re Foreclosure of Liens for Delinquent Land Taxes by Action in Rem, 190 S.W.3d 416 (Mo.App. W.D.2006), the former holder of a deed of trust on property claimed during a hearing to confirm a tax sale that it did not receive constitutionally sufficient notice of the tax sale. Notices had been sent to the holder’s address shown on its deed of trust. Id. at 418. The holder thereafter moved its offices and claimed the collector should have known of its new address because it was paying its own property taxes at its new location. Id. at 420. This court stated that in balancing the duties imposed by due process and a party’s obligation to protect its own property, “at some point, a property owner’s presumptive duty to preserve his property will outweigh the responsibility of a tax collector to provide more extensive forms of notice.” Id. at 421. Therefore, this court found that, unless the County had some knowledge that the notice was not likely to reach the party, it was not required to investigate whether the party’s publicly recorded address was correct, and constitutionally sufficient notice only required the County to send notice to the party’s last known address. Id.

Though these cases hold that notice sent to an incorrect address will not support setting aside a tax sale on the basis that the notice was constitutionally deficient, they do so based on their specific facts and not as a matter of law, as Frey contends. These cases do not stand for the “bright line” proposition that use of an incorrect address to provide notice to a property owner will never warrant setting aside a tax sale on the basis that notice was constitutionally deficient. In fact, as emphasized in both cases, courts are to apply a “balancing test” to the facts to determine whether a collector’s efforts to provide notice to a property owner were unreasonable and, thus, constitutionally deficient. We can certainly envision a scenario where notice is sent to an incorrect address upon the collector’s records due to no fault or responsibility attributable to the property owner but due entirely to a mistake or misconduct by a collector’s office. On the current limited record, we are not prepared to conclude that notice sent to an incorrect address under such a circumstance would be deemed “reasonably calculated” to reach the property owner so as to comport with due process, given the standards described in Schwartz, 780 S.W.2d 42, and In re Foreclosure of Liens for Delinquent Land Taxes by Action in Rem, 190 S.W.3d 416.

In this case, there is no question that all required statutory notices were sent to the Partnership at the Utah address. There is no question that during all applicable periods, the Utah address was the address for the Partnership on the records of the collector. There is no question that the County now contends that the Utah address was never the correct address for the Partnership. This bare allegation, however, is legally insufficient to support a judgment setting aside the tax sale in light of Schwartz, 780 S.W.2d 42, and In re Foreclosure of Liens for Delinquent Land Taxes by Action in Rem, 190 S.W.3d 416. In fact, the “evidence” before the trial court was insufficient to permit the court to render a legal conclusion with respect to the constitutional sufficiency of the notice provide by the County to the Partnership one way or the other. This is true notwithstanding that the allegation of inaccurate notice was made (unusually) by the County — by the party who initiated the foreclosure proceedings in the first place. Once the tax sale occurred, Frey acquired an intervening interest in the Property, which prevented the County from divesting her of that interest without satisfying the same standard to prove that notice was not constitutionally sufficient that would have applied had the proceeding to set aside the tax sale been initiated by the Partnership.

It was error, therefore, for the trial court to summarily grant the County’s motion to set aside the tax sale without an evidentiary hearing. See Schwartz v. Dey, 665 S.W.2d 933, 935 (Mo. banc 1984) (holding that the trial court erred in summarily dismissing a petition to set aside a tax sale without considering evidence of the means available to the collector for apprising plaintiff of the pendency of the sale). We are required, therefore, to remand this case for further proceedings. As Frey and the Partnership are parties to this appeal, they will remain parties to the proceedings on remand, entitled to notice of, and the right to participate in, those proceedings.

On remand, the trial court, after hearing all relevant evidence, should determine whether the County provided notice reasonably calculated to reach the Partnership; that is, notice that was constitutionally sufficient. If so, then the tax sale should not be set aside.

Point III

In her third point on appeal, Frey claims that the trial court’s Judgment setting aside the tax sale is barred by the doctrine of res judicata and is an impermissible collateral attack on the Foreclosure Judgment. Specifically, Frey argues that because the Foreclosure Judgment found that all statutorily required notices had been properly sent to the Partnership, the Judgment should not have found to the contrary. We disagree.

Motions to set aside tax sales can be filed either before or after confirmation of the sale. See, e.g., Schwartz, 780 S.W.2d at 42 (former owners of property brought suit to set aside tax collector’s deed following tax sale claiming constitutionally deficient notice); In re Foreclosure of Liens for Delinquent Land Taxes by Action in Rem, 190 S.W.3d at 418 (former owners filed motion to set aside tax sale, which was considered at the same time as the hearing to confirm the sale pursuant to section 141.580). Our Supreme Court has expressly held that a judgment confirming a tax sale procured through fraud, accident, or mistake may be reopened for consideration. Brasker v. Cirese, 269 S.W.2d 62, 66 (Mo. banc 1954).

In Director of the Department of Revenue, Jackson County, v. Parcels of Land Encumbered with Delinquent Tax Liens, 555 S.W.2d 293 (Mo. banc 1977), the Director filed a motion to set aside a tax sale when the Director learned that the sale had been conducted in error as the delinquent taxes had, in fact, been paid prior to the sale. Id. at 295. The motion was filed after entry of the judgment of foreclosure and after entry of the judgment confirming the tax sale. Id. The purchaser at the tax sale objected, and claimed the motion constituted an improper collateral attack on these judgments. Id. at 296. As does Frey, the purchaser relied heavily on Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W.2d 86, 100-01 (1944), where the Supreme Court held a foreclosure judgment’s finding that taxes were delinquent was res judicata.

The Supreme Court in Director of the Department of Revenue, Jackson County held that a motion to set aside judgments and deeds is in the nature of a writ of error coram nobis when an error of fact has been stated which may be and is demonstrated by extrinsic evidence. 555 S.W.2d at 296. Such a motion is:

made to the trial court to correct errors of fact, not appearing on the face of the record, affecting the validity of proceedings which errors of fact were unknown to the party now seeking relief and to the court at the time of disposition of the particular case, and which errors of fact, had they been known, would have prevented the rendition of the judgment .... The motion or application is considered a new action in the nature of an independent and direct attack upon a judgment with the purpose of revoking or annulling the judgment.

Id. (internal quotation marks omitted) (quoting Norman v. Young, 301 S.W.2d 820, 822 (Mo.1957)). The Supreme Court thus overruled Spitcaufsky to the extent deemed necessary by its holding. Id. at 296-97.

The analysis articulated in Director of the Department of Revenue, Jackson County applies equally here. The County filed a motion to set aside the tax sale claiming irregularity, accident, or mistake. Though not a writ of error coram nobis, the motion similarly asserted that an error of fact, demonstrable by extrinsic evidence, and not appearing on the face of the record, affected the validity of the proceedings. Though the Foreclosure Judgment- concluded that all notices required by statute had been sent to the Partnership, the County’s motion arguing to the contrary should be considered a “new action in the nature of an independent and direct attack” on the Foreclosure Judgment. As in Director of the Department of Revenue, Jackson County, had the court which entered the Foreclosure Judgment known that the notices to the Partnership were going to an address that had been erroneously entered upon the records of the collector by the County, then the Foreclosure Judgment would not have been entered.

Point three is denied.

Conclusion

The judgment of the trial court setting aside the tax sale is reversed, and this case is remanded for further proceedings consistent with this opinion.

All concur.

      . All statutory references are to RSMo 2000 as supplemented unless otherwise noted.

      . The County claims the in rem nature of the proceedings did not require it to provide notice of the motion to Frey.

      . Frey has filed a motion to strike the Partnership’s brief as it raises numerous factual allegations which are not supported by die record. We agree that the Partnership's brief is defective in this regard. In lieu of striking the brief, we have ignored those factual allegations in the brief that are not supported by the record, including, without limitation, all discussions with respect to a claimed "redemption” of the Property by the Partnership after the foreclosure sale. As a result, Frey's motion is denied.

      . This rationale is particularly applicable where, as in this case, the action is one purely in rem. See section 141.360 (requiring that suits for the foreclosure of tax liens "shall name [the collector] only by the title of his office and all such suits shall be brought directly against the real estate subject to the tax lien or liens to be foreclosed, and shall not name any person as defendant”). We further note that, even if in an indirect sense, "a proceeding in rem makes all who have an interest in the title to the property parties to the proceeding — not personally, but insofar as they are bound by the judgment as respects the res.” Spitcaufsky v. Batten, 353 Mo. 94, 182 S.W.2d 86, 112 (1944), overruled on other grounds by Dir. of Dep't of Revenue, Jackson County v. Parcels of Land Encumbered with Delinquent Tax Liens, 555 S.W.2d 293, 297 (Mo. banc 1977).

      . Legal title could not have been conveyed to Frey until the sale was confirmed as required by section 141.580.

      . We similarly deny the Partnership’s motions to dismiss Frey's appeal on the basis that she lacks standing or that her notice of appeal was untimely.

      . We do not know, for example: whether the address for the Partnership upon the collector’s record was, in fact, incorrect, and if it was incorrect, how that address came to be entered upon the collector’s record; what, if any, role the Partnership played in the entry of an incorrect address upon the collector's record; who resided at the Utah address and what, if any, affiliation they had with the Partnership; who accepted delivery of the notices sent to the Utah address, and what, if any affiliation they had with the Partnership; when and how the Partnership learned of the incorrect address; the circumstances surrounding the purported discussion between the County and the Partnership wherein the County allegedly advised it would remove the Property from the sale; why, if this conversation occurred, the Partnership did not redeem tire Property by the payment of the delinquent taxes, before the sale; whether, notwithstanding an allegedly incorrect address for the Partnership, the Partnership nonetheless had actual notice of the petition to foreclose and of the tax sale; how long the Partnership had not paid taxes and why the Partnership had not determined on its own that it was not paying taxes for the Property during the tax delinquency period; and so on.

      . Frey has not raised as an issue on appeal whether it was error for the Judgment to have been entered without advance notice of the County’s motion to set aside the tax sale being served on Frey. We do not address, therefore, whether the purchaser at a tax sale becomes a party legally entitled to advance notice of any subsequent proceedings involving the sale, notwithstanding the in rem nature of the underlying proceedings, though we believe it obvious that the better practice would be to afford the purchaser at sale with such notice.

      . Effective January 1, 1988, Rule 74.06(d) abolished writs of coram nobis, and provided that "the procedure for obtaining relief from a judgment shall be by motion as prescribed in these Rules or by an independent action.”

      . We recognize that technically the County’s motion seeks to set aside not the Foreclosure Judgment but only the tax sale for the Property. The practical effect, however, is the same.

      .We are not assuming by this reference that the facts as alleged by the County are correct, as that determination remains to be made by the trial court on remand.


author: PER CURIAM:

text:
    Bridget Anne LUCKEY, et al., Appellant, v. Delores SANTELLAN, et al., Respondents.
    No. WD 71653.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2010.
    Rehearing Denied Feb. 1, 2011.
    Dennis G. Muller, for Appellant.
    Matthew F. Mulhern, for Respondent, Delores Santellan.
    Mark D. Chuning, for Respondent, Janice Holsten.
    Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Bridget Luckey appeals the trial court’s judgment dismissing her personal injury claim for failure to comply with the court’s orders requiring her to provide supplemental responses to discovery requests. On appeal, Luckey claims that the trial court abused its discretion in dismissing her action with prejudice without a hearing and in entering the underlying discovery orders. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).