author: JEFFREY W. BATES, Presiding Judge.

text:
    Ed ENGLISH by and through Carol S. DAVIS, Public Administrator of Taney County, Missouri, as Guardian and Conservator of Ed English, Plaintiff-Appellant, v. Edward J. HERSHEWE and The Hershewe Law Firm, P.C., formerly Hershewe & Gulick, P.C., Defendants-Respondents.
    No. SD 30075.
    Missouri Court of Appeals, Southern District, Division One.
    May 4, 2010.
    Motion for Rehearing or Transfer Denied May 24, 2010.
    Application for Transfer Denied June 29, 2010.

      Donald E. Woody, Springfield, MO, for Appellant.
    Ronald E. Mitchell, Joplin, MO, for Respondents.
   JEFFREY W. BATES, Presiding Judge.

This is an appeal from a summary judgment on a legal malpractice claim granted in favor of defendant Edward Hershewe (Hershewe) and the Hershewe Law Firm, P.C. (collectively, Defendants) and against plaintiff Ed English (English), by and through his guardian and conservator, Carol Davis (Davis). Because there are genuine issues of material fact that require a trial and Defendants are not entitled to judgment as a matter of law, the judgment is reversed and the cause is remanded for further proceedings.

I. Standard of Review

A summary judgment can only be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); Hitchcock v. New Prime, Inc., 202 S.W.3d 697, 699 (Mo.App.2006); Lindsay v. Mazzio’s Corp., 136 S.W.3d 915, 919 (Mo.App.2004). Appellate review is de novo. Wilson v. Rhodes, 258 S.W.3d 873, 875 (Mo.App.2008). This Court uses the same criteria the trial court should have used in initially deciding whether to grant defendants’ motion. Harris v. Smith, 250 S.W.3d 804, 806 (Mo.App.2008). Appellate review is based upon the record submitted to the trial court. Sexton v. Omaha Property and Cas. Ins. Co., 231 S.W.3d 844, 845 (Mo.App.2007). That record is viewed in the light most favorable to the party against whom judgment was entered, and the nonmoving party is accorded the benefit of all inferences which may reasonably be drawn from the record. ITT Commercial Finance Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Because summary judgment is “an extreme and drastic remedy,” we exercise great caution in affirming it because the procedure cuts off the opposing party’s day in court. Id. at 377. Summary judgment is the undisputed right to judgment as a matter of law, not simply the absence of a fact question. Id. at 380. “A genuine issue of material fact” exists where the record contains competent evidence that two plausible, but contradictory, accounts of essential facts exist. Amusement Centers, Inc. v. City of Lake Ozark, 271 S.W.3d 18, 19 (Mo.App.2008).

As our Supreme Court explained in ITT, Rule 74.04 distinguishes between a motion for summary judgment filed by a “claimant” and by a “defending party.” ITT, 854 S.W.2d at 380. Here, the Defendants were the defending parties.

[A] “defending party” may establish a right to judgment by showing (1) facts that negate any one of the claimant’s elements facts, (2) that the nonmovant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

Id. at 381 (italics in original); see Ameristar Jet Charter, Inc. v. Dodson Int’l Parts, Inc., 155 S.W.3d 50, 58-59 (Mo. banc 2005). “If the trial court grants summary judgment without specifying the basis upon which it was granted, we will uphold the decision if it was appropriate under any theory.” Deer Run Property Owners Ass’n v. Bedell, 52 S.W.3d 14, 17 (Mo.App. 2001).

II. Factual and Procedural Background

In October 1995, English was injured in an electrocution accident involving power lines owned by Empire District Electric Company (Empire). In June 1998, Her-shewe was contacted by attorney Dan Ramsdell (Ramsdell) about taking English’s case. At that time, Hershewe was representing another person also injured in the same accident. Hershewe agreed to represent English as trial counsel and co-counsel with Ramsdell.

On August 28, 1998, Hershewe sent a letter (hereinafter referred to as the prejudgment interest letter) to Empire’s counsel, Gary Lentz (Lentz). The letter stated that, pursuant to the prejudgment interest statute, English would settle his claim for $2,000,000 and would leave the offer open for 61 days. Another prejudgment interest letter was sent to a different defendant in the case a month earlier by certified mail. Hershewe knew he sent Empire the prejudgment interest letter by facsimile (fax) and believed, based on office policy, that the prejudgment interest letter had also been sent by certified mail. Lentz acknowledged that he received the letter by fax, but he did not receive the letter by certified mail. Empire did not accept the offer or respond in any way to the prejudgment interest letter. In October 1998, English filed his initial petition against Empire. In his initial petition and subsequent amended petitions, English alleged that he was entitled to prejudgment interest.

At some point in the fall of 2001, Her-shewe became aware of the possibility that the prejudgment interest letter had not been sent by certified mail. After searching his files, Hershewe could not find any documentation to prove the prejudgment interest letter had been sent by certified mail. On November 1, 2001, Hershewe met with English and his wife and advised them about the status of the prejudgment interest letter. According to Hershewe, he specifically discussed: (1) the implications of possibly losing prejudgment interest if the letter had not been sent by certified mail; (2) the risks of sending a second letter; (3) English’s option of firing Hershewe and his firm and hiring a new attorney to represent him; and (4) the possibility that English may have a claim against him and the law firm for legal negligence. After discussing the various risks and options, English chose to retain Hershewe’s representation, rely on the original prejudgment interest letter and not send a second letter.

In August 2003, Letters of Guardianship were issued for English. Rita Housman, Taney County Public Administrator, was appointed as his guardian and conservator. In January 2005, Davis succeeded Rita Housman and continues to represent English as ' his guardian and ' conservator. With respect to all matters relevant to this appeal mentioned hereinafter, English is acting by and through Davis.

In October 2005, English’s case was tried to a jury. Oh October 18, 2005, the jury returned a verdict in English’s favor for $4,000,000. At subsequent hearings held on October 31, 2005 and December 5, 2005, English argued he was entitled to prejudgment interest, although he was unable to produce evidence proving that the prejudgment interest letter had been sent by certified mail. On December 6, 2005, the trial court entered an amended judgment awarding English $3,800,000 and prejudgment interest of $2,433,353.42, which accrued from 60 days after August 28, 1998 when the original prejudgment interest letter was sent. Thereafter, Empire appealed. On April 23, 2007, this Court, reversed the trial court’s award of prejudgment interest, but left the underlying verdict and judgment intact. English v. Empire Dist. Elec. Co., Inc., 220 S.W.3d 849, 858 (Mo.App.2007).

The parties to the appeal were required to file any motions for rehearing or applications for transfer within 15 days after the date, the opinion was filed. Rule 84.17(b); Rule 83.02. On May 9, 2007, English filed a motion for rehearing and an application for transfer to the Supreme Court of Missouri. The next day, Her-shewe called Empire’s counsel and asked whether Empire was going to file a motion for rehearing or application for transfer. Upon receiving a negative response, Her-shewe said he would withdraw English’s motion if he received a letter that same day from Empire’s counsel confirming its intention not to file such a motion or application. Empire complied, and Hershewe withdrew the motion.

Thereafter, Empire began calculating the amount of post-judgment interest that had accrued to determine the total sum necessary to satisfy the judgment. In June 2007, English signed a “Settlement Statement” prepared by Hershewe authorizing the distribution of money anticipated from Empire, including $1,931,785.53 in attorney’s fees to be paid to Defendants. In August 2007, English signed and filed a “Satisfaction of Judgment” acknowledging receipt of $4,311,085.31 (the amount specified in the amended judgment plus post-judgment interest) as full and final satisfaction of the judgment in English’s case against Empire.

In February 2008, English filed suit against Defendants to recover damages based upon their alleged negligence. The first amended petition alleged that Defendants were negligent in the following ways:

With respect to defendants’ aforesaid prejudgment interest offer of settlement and subsequent legal pleadings and proceedings related thereto, defendants were negligent, careless, and failed to use that degree of skill and learning ordinarily used by members of their profession in one or more of the following respects:
a. Defendants failed to send the prejudgment interest offer to settle to Empire District Electric Company, Inc., by certified mail as required by § 408.040(2), R.S.Mo., 1987.
b. Defendants failed to preserve any credible evidence and/or documentation that they had sent the prejudgment interest offer to settle to Empire District Electric Company, Inc. by certified mail.
c. Defendants failed to produce evidence at the subsequent court hearing held on October 31, 2005 and/or December 5, 2005 on prejudgment interest to prove that the prejudgment interest offer of settlement was sent by certified mail.
d. Defendants failed to allege the correct statute number in their petition allegations concerning prejudgment interest in that they incorrectly referred to § 408.080 rather than § 408.040(2).
e. Defendants failed to allege in their pleadings the facts which would have absolved defendants from their obligation to produce proof that the settlement offer was sent by certified mail and/or failed to allege in their pleadings the facts which, if admitted, would have constituted a binding judicial admission by Empire District Electric Company, Inc. that Ed English was entitled to prejudgment interest.
f. When defendants knew or should have known of their failure to send the prejudgment interest offer to settle to Empire District Electric Company, Inc., by certified mail, and/or their failure to maintain and/or preserve any credible evidence or documentation that the prejudgment interest offer to settle had been sent to Empire District Electric Company, Inc. by certified mail and/or their prior sending of the prejudgment interest offer to settle by facsimile transmission was insufficient, they failed to timely send a prejudgment interest offer to settle to Empire District Electric Company, Inc. by certified mail as required by Section 408.040(2), R. S.Mo., 1987.

In Defendants’ answer, they asserted three affirmative defenses, which formed the basis of their motion for summary judgment filed in February 2009. In that motion, Defendants alleged that they were entitled to summary judgment as a matter of law on English’s first amended petition because the uncontroverted facts established that: (1) the applicable five-year statute of limitations expired before English filed this action; (2) Defendants’ actions in sending a prejudgment interest letter in August 1998 complied with applicable law at the time and, therefore, could not constitute malpractice; and (3) English abandoned any claim of malpractice against Defendants, or elected his remedy such that he cannot establish proximate cause, by settling the underlying case after the opinion by this Court.

In August 2009, a hearing on the motion was held. Thereafter, the trial court granted summary judgment in favor of Defendants. This appeal followed. Additional facts will be disclosed as necessary to address English’s three points on appeal.

III. Discussion and Decision

Point I

The first ground asserted in Defendants’ motion for summary judgment is that the applicable statute of limitations expired before English brought this action. The parties agree that the applicable statute of limitations for legal negligence is the five-year period provided by § 516.120(4). See Wright v. Campbell, 277 S.W.3d 771, 777 n. 8 (Mo.App.2009); Day v. deVries and Assoc., P.C., 98 S.W.3d 92, 95 (Mo.App.2003). Because the statute of limitations is an affirmative defense asserted by Defendants, they bear the burden of establishing that the statute bars English’s claims. Rule 55.08; White v. Zubres, 222 S.W.3d 272, 274 (Mo. banc 2007). Defendants argued below that English’s cause of action for legal negligence arose and the five-year statute of limitations began to run on November 1, 2001 when Hershewe advised English that he might have a claim against Defendants. Therefore, Defendants argued that the statute of limitations had expired by the time English filed his action for legal negligence in February 2008.

On appeal, English contends that his cause of action against Defendants did not accrue until October 2005 when the jury in the underlying personal injury action returned a verdict in excess of the $2,000,000 settlement offer in the 1998 prejudgment interest letter. This Court agrees. The version of § 408.040 in effect in 1998 authorized an award of prejudgment interest when “the amount of the judgment or order exceeds the demand for payment or offer of settlement ....” § 408.040.2 RSMo (1994). In a jury-tried case, the trial court determines whether an award of prejudgment interest is authorized after the verdict is returned. See Dalton & Marberry, P.C. v. NationsBank, N.A., 982 S.W.2d 231, 237-38 (Mo. banc 1998); Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 25 (Mo.App.2005); Bowan ex rel. Bowan v. Express Medical Transporters, Inc., 135 S.W.3d 452, 464 (Mo.App.2004). Only at that point is it possible to ascertain whether the verdict exceeds the amount of the demand for payment or offer of settlement.

In determining when English’s cause of action accrued, § 516.100 requires, in relevant part, that “the 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....” Id.; Wright, 277 S.W.3d at 774; see, e.g., Delp v. Doe, 895 S.W.2d 91, 93 (Mo.App.1995) (earliest date plaintiffs damages for the loss of her personal injury action were both sustained and ascertainable was one day after the last day her action could have been refiled). “In other words, the statute of limitations begins to run when the plaintiffs right to sue arises or when the plaintiff could first successfully maintain his cause of action.” State ex rel. Gasconade County v. Jost, 291 S.W.3d 800, 804 (Mo.App.2009); see Murray v. Fleischaker, 949 S.W.2d 203, 206 (Mo.App.1997) (“[t]he test is when the plaintiff could have first successfully maintained the action”); M & D Enterprises, Inc. v. Wolff, 923 S.W.2d 389, 394 (Mo.App.1996) (same holding); Modern Tractor and Supply Co. v. Leo Journagan Construction Co., 863 S.W.2d 949, 952 (Mo.App.1993) (similar holding).

In the case at bar, English’s cause of action did not accrue until October 18, 2005, when the jury returned its verdict for $4,000,000. This was the first point in time at which anyone could determine whether English would be entitled to prejudgment interest. See Dalton, 982 S.W.2d at 237-38; Boggs, 164 S.W.3d at 25; Bowan, 135 S.W.3d at 464. Had the jury returned a verdict for Empire or for English in an amount less than $2,000,000, he would not have been entitled to prejudgment interest. In such event, the alleged failure to send the prejudgment interest letter by certified mail would, in fact, have caused no damage whatsoever to English. Therefore, October 18, 2005 was the earliest date that any damage resulting from Defendants’ alleged negligence was both sustained and capable of ascertainment. See § 516.100. If English had filed suit prior to this date, the action would have been premature because he would have been unable to prove that he had sustained any damage due to Defendants’ actions. See, e.g., Cain v. Hershewe, 760 S.W.2d 146, 149 (Mo.App.1988) (because plaintiff could not presently prove any damages flowing from the defendants’ professional negligence, his suit against these defendants is premature); Eddleman v. Dowd, 648 S.W.2d 632, 633-34 (Mo.App.1983) (affirming dismissal of a legal malpractice case because the underlying personal injury case was still pending and therefore plaintiff could not prove any damage); see also Bray v. Brooks, 41 S.W.3d 7, 15-16 (Mo.App.2001). The action that English filed against Defendants was brought well within the applicable five-year statute of limitations. § 516.120(4). Accordingly, the trial court erred in granting summary judgment to Defendants on this ground. Point I is granted.

Point II

Elements of an action for legal malpractice are: (1) an attorney-client relationship; (2) negligence or breach of contract by the defendant; (3) proximate causation; and (4) damages. Patterson v. Warten, Fisher, Lee & Brown, L.L.C., 260 S.W.3d 417, 419 (Mo.App.2008). “To establish that an attorney was negligent, a plaintiff must show that he failed to exercise that degree of skill and diligence ordinarily used under the same or similar circumstances by members of the legal profession.” Thiel v. Miller, 164 S.W.3d 76, 82 (Mo.App.2005); Steward v. Goetz, 945 S.W.2d 520, 531 (Mo.App.1997). The second ground asserted by Defendants for summary judgment is that, as a matter of law, Hershewe’s act of sending the prejudgment interest letter by fax on August 28, 1998 cannot constitute legal malpractice because it complied with applicable law at that time.

This assertion requires a brief overview of the applicable law concerning the recovery of prejudgment interest pursuant to § 408.040.2 RSMo (1994). In 1998, that subsection of the statute stated:

In tort actions, if a claimant has made a demand for payment of a claim or an offer of settlement of a claim, to the party, parties or their representatives and the amount of the judgment or order exceeds the demand for payment or offer of settlement, prejudgment interest, at the rate specified in subsection 1 of this section, shall be calculated from a date sixty days after the demand or offer was made, or from the date the demand or offer was rejected without counter offer, whichever is earlier. Any such demand or offer shall be made in writing and sent by certified mail and shall be left open for sixty days unless rejected earlier. Nothing contained herein shall limit the right of a claimant, in actions other than tort actions, to recover prejudgment interest as otherwise provided by law or contract.

Id. (emphasis added). Thus, the plain language of the statute required the prejudgment interest letter to be sent by certified mail. In Larabee v. Washington, 793 S.W.2d 357 (Mo.App.1990), however, the western district of this Court had held that certified mail was not required where the opposing party did not deny receiving the prejudgment interest letter or taking action based upon the letter. Id. at 361. Larabee was good law on August 28, 1998, when English’s prejudgment interest letter was sent. Only 25 days later, however, Larabee was overruled by our Supreme Court in Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 449-50 (Mo. banc 1998). The Court held that “Section 408.040.2 is clear and requires certified mail. Since plaintiffs letter was not sent by certified mail, the trial court correctly denied prejudgment interest.” Id. at 449. The Court explained that “[t]he requirement for certified mail helps ensure that the recipient is made aware that the statute is being invoked to overcome the general rule against prejudgment interest. The certified mail requirement also helps minimize disputes as to whether, and on what date, the offer was, in fact, received.” Id. In the underlying personal injury action appeal, this Court relied on Emery and held that English was not entitled to prejudgment interest because: (1) he was unable to prove that the letter containing his settlement offer had been sent to Empire by certified mail; and (2) the pleadings did not contain sufficient facts or judicial admissions to relieve English of the obligation of proving that fact. English v. Empire Dist. Elec. Co., Inc., 220 S.W.3d 849, 857-58 (Mo.App.2007).

Relying only on Larabee, Defendants argued below that they were entitled to summary judgment as a matter of law because “sending the August 28, 1998 prejudgment interest letter by fax (whether or not it was also sent by certified mail) to Empire District cannot be malpractice, as they satisfied the law in effect at the time to invoke the prejudgment interest statute.” The trial court agreed with that argument. On appeal, English contends the trial court’s ruling was erroneous because there are genuine issues of material fact that require a trial to resolve. This Court agrees. One specification of negligence alleged in English’s first amended petition was that “Defendants failed to preserve any credible evidence and/or documentation that they had sent the prejudgment interest offer to settle to Empire District Electric Company, Inc. by certified mail.” Viewing the record in the light most favorable to English, there was evidence to support that allegation. In July 1998, Defendants sent another prejudgment interest letter by certified mail to a different defendant in the case. In Hershewe’s deposition, he testified that he believed English’s prejudgment interest letter to Empire had been sent by certified mail, as well as by fax. Defendants continue to make that assertion on appeal. Based upon this evidence, one reasonable inference a jury could draw is that English’s letter to Empire was sent by certified mail, but the evidence necessary to prove that fact was misplaced or lost by Defendants. That factual issue requires a trial to resolve.

The trial court’s ruling was erroneous for another reason as well. The ruling below was based upon the implicit premises that: (1) Defendants sent English’s prejudgment letter to Empire only by fax; and (2) in doing so, Defendants intended to rely upon Larabee. Based upon the evidence summarized above, there is a genuine issue of material fact concerning whether Defendants ever intended to rely upon Larabee at all. It is well settled that “[sjummary judgment is particularly inappropriate when the underlying issue is one of state of mind, motivation, intent or some other subjective fact.” Barekman v. City of Republic, 232 S.W.3d 675, 682 (Mo.App.2007). Moreover, assuming Defendants did intend to rely upon Larabee, that decision was overruled in Emery only 25 days after the English prejudgment interest letter had been sent. At that point, no prudent lawyer could rely upon Larabee when seeking prejudgment interest. See, e.g., Emery v. Carnahan, 88 S.W.3d 138, 142 (Mo.App.2002) (reliance on Larabee misplaced; attorney’s failure to send settlement offer to opposing party via certified mail in personal injury action supported claim for legal malpractice). Viewing the record in the light most favorable to English, a jury could reasonably infer that Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 449-50 (Mo. banc 1998), required Defendants, as prudent attorneys, to send another settlement offer letter to Empire by certified mail in order to be able to claim prejudgment interest. Doing so would have preserved English’s potential right to recover prejudgment interest for nearly all of the seven-year time period that elapsed between English’s first settlement offer and the trial. Because genuine issues of material fact exist that require a trial, the trial court erred by granting summary judgment on this ground as well. Point II is granted.

Point III

The third ground asserted by Defendants for summary judgment is that English abandoned any claim of malpractice, or elected his remedy such that he cannot establish proximate cause, by settling the underlying case after the opinion by this Court. As with all affirmative defenses and avoidances, Defendants bore the burden of proving English’s abandonment or election of remedies barred his legal negligence claim. See Rule 55.08. Viewing the record in the light most favorable to English, the following facts are necessary to discuss this point.

Hershewe recommended that English file his motion for rehearing or application for transfer only because Hershewe believed Empire would file such a motion or application, and English’s own filing was necessary to protect his interests. Upon learning Empire was not going to file its own motion or application, Hershewe withdrew English’s motion and application. Hershewe testified in his deposition that he did so because English was in great danger of having his $8,800,000 judgment reversed by the Supreme Court if transfer occurred. Co-counsel Ramsdell was similarly concerned that, if English continued to appeal the prejudgment interest issue by pursuing his own motion for rehearing and application for transfer, he could lose the whole case. According to Ramsdell, he highly recommended that Hershewe not pursue further review of the case for that reason. In addition, the attorney representing Davis, Matt Trokey (Trokey), was also concerned about further review. Although Trokey was not consulted prior to withdrawal of English’s motion and application, he agreed that withdrawal was necessary for English to avoid the considerable risk of losing his judgment by further appeal. According to Trokey, both Rams-dell and Hershewe indicated to him after the appeal that they were not going to get prejudgment interest back from the Supreme Court.

Below, Defendants argued that Her-shewe’s agreement to withdraw English’s motion and application if Empire agreed not to file anything amounted to a settlement of the underlying case, thereby depriving Defendants of the opportunity to preserve and review the issue of prejudgment interest in the Supreme Court. On appeal, English argues the trial court erred in granting summary judgment on this ground because Hershewe did not settle the underlying case with Empire. Once again, this Court agrees with English.

Defendants’ assertion that the withdrawal of English’s motion for rehearing and application for transfer amounted to a settlement is specious. This Court’s opinion in English’s personal injury action was handed down on April 23, 2007. Empire had until May 9, 2007, to file a motion for rehearing and/or application for transfer. Rule 84.17(b); Rule 83.02; Rule 44.01(a); see State v. Fields, 538 S.W.2d 348, 351 (Mo.App.1976) (striking an untimely motion for rehearing and application for transfer because the mandatory 15-day time period was not met); Adams v. White, 488 S.W.2d 289, 294 (Mo.App.1972) (same holding). When Hershewe contacted Empire on May 10, 2007, it was already too late for Empire to file its own motion, so Hershewe received nothing in exchange for his withdrawal of English’s motion and application. Viewed most favorably to English, the evidence supports the reasonable inference that his motion and application were filed only to protect his own interests in the event Empire filed something, which it did not do. Once that became evident, Hershewe withdrew English’s motion and application because of a serious risk that a further appeal would place the entire judgment at risk. All English received was what he was entitled to get in order to satisfy the judgment: the principal amount of the judgment, plus accrued post-judgment interest. There was no settlement with Empire after the appeal. Therefore, Defendants’ argument that English abandoned his malpractice claim or elected a remedy has no merit. The trial court erred in granting summary judgment on this ground. Point III is granted.

For all these reasons, the trial court erred in granting summary judgment for Defendants. The judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

LYNCH, J., and THOMPSON, J., Concur.

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

      . In the amended judgment, the trial court reduced the amount of the verdict by $200,000, which is the amount of a settlement English previously reached with a former defendant.

      . The 15th day after the opinion was May 8, 2007, which was a state holiday (Truman Day). Therefore, English’s motion and application were timely filed. See Rule 44.01(a).

      .At that point, any such motion or application by Empire would have been untimely. Rule 84.17(b); Rule 83.02.

      . This statute was substantially amended in 2005. See § 408.040 RSMo Cum.Supp. (2005).

      . The 2005 amendment to § 408.040 retained the certified mail requirement and specifies that the offer "[b]e in writing and sent by certified mail return receipt requested[.]” § 408.040.2(1) RSMo Cum.Supp. (2005).

      . As their brief states, "[i]t is [Defendants’] contention and belief that the August 28, 1998 correspondence to Empire District was also sent by certified mail.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Interest of: A.N.F.
    No. ED 93597.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 4, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 8, 2010.
    Robert Bilbrey, for appellant, Natural Mother.
    Abigail W. Sapp, for respondent, Juvenile Officer.
    Kourtney Lamb, The guardian ad litem for the juvenile.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

D.F. (Mother) appeals the Circuit Court’s termination of parental rights to her minor child, A.F. Mother asserts that the trial court erred in: (1) failing to grant her motion for a continuance; and (2) finding that clear, cogent, and convincing evidence supported termination pursuant to Mo.Rev.Stat. § 211.447.5(3) (Cum.Supp. 2007).

We have reviewed the briefs of the parties and the record on appeal and find the trial court did not abuse its discretion in denying Mother’s motion for a continuance and that the judgment terminating Mother’s parental rights is supported by clear, cogent, and convincing evidence. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Patricia OWENS, Appellant, v. SAINT LOUIS COUNTY LIBRARY and DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. ED 93807.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 4, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 8, 2010.
    Patricia Owens, pro se.
    David Frenzia, for St. Louis County Library, respondent.
    Ninion S. Riley, for Division of Employment Security, respondent.
    Before KENNETH M. ROMINES, C.J., ROY L. RICHTER, J., and WILLIAM L. SYLER, Sp. J.
   ORDER

PER CURIAM.

Patricia Owens (“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 her 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).


author: DANIEL E. SCOTT, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Robert J. GRIFFITH, Jr., Appellant.
    No. SD 29428.
    Missouri Court of Appeals, Southern District, Division Two.
    May 10, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 1, 2010.
    Application for Transfer Denied June 29, 2010.

      John M. Albright, Daniel T. Moore, Poplar Bluff, for Appellant.
    Chris Koster, Atty. Gen., Terrence M. Messonnier, Asst. Atty. Gen., Jefferson City, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

The State charged Robert Griffith (Defendant), a school bus driver, with nine sex offenses involving four children. Five counts were dropped before trial. A jury acquitted Defendant of three others, but convicted him of molesting five-year-old P.S. (Child) and recommended the minimum sentence of five years’ imprisonment.

Defendant’s eight appeal points allege juror misconduct, instructional error, and insufficiency of the evidence. For clarity and brevity, we reference facts adduced before, during, and after trial in the context of each point. We begin with Point II because Point I, in Defendant’s words, “is a summary” of Points II through VII.

Point II

Defendant alleges that he was deprived of a fair and impartial jury in that Juror 12 did not disclose in voir dire that she had predetermined Defendant’s guilt and suggested after jury selection that she meant to “fry his ass.”

Background

Defendant raised this issue in his motion for new trial and adduced testimony at the hearing. Defense counsel called Juror 12 to the stand, referred her to the night of jury selection, and asked if she had commented to other jurors about Defendant’s guilt or innocence. Juror 12 said no. Defense counsel asked Juror 12 if, after the jury went into deliberations, a female juror told the jury that Juror 12 “made a comment before the trial started.” Juror 12 answered, “Seemed like it, but I can’t remember.” However, Juror 12 repeatedly thereafter testified that she made no improper statements. Defense counsel asked Juror 12 if her mind was not “made up somewhat, maybe not firmly convinced, but you had your mind made up” as to Defendant’s guilt before trial. Juror 12 replied, “Once again, no, no I didn’t.”

Juror 11 was the next witness. She testified that after the jury was picked, she was walking out with Juror 12 and another juror when Juror 12 said, “We did it. We got on. We’re going to fry his ass.” Juror 11 testified that she and the other juror looked at Juror 12, who said, “Oh, I didn’t mean to say that. I shouldn’t have said that. I better go to work.” Juror 11 also testified that when the jury retired to deliberate at the end of the case:

[Juror 12] sat down and said that he was guilty and put her hands behind her back and that she wasn’t going to discuss it any more. And I stood up and said in front of all the other jurors then what she had mentioned, stated the day of the selection when we left.

Juror 11 said Juror 12 “just looked at me” and did not acknowledge having made any statement.

Juror 9 testified that she walked out with Jurors 11 and 12 on the night the jury was chosen. Juror 9 did not recall Juror 12’s exact statement, but it was something to do with Defendant being guilty. Juror 9 also believed that Juror 12’s statement was brought up when the jury began deliberations.

Juror 10 testified that he did not hear Juror 12 say anything of concern following jury selection, but after jury deliberations began, Juror 12 was confronted about allegedly having said Defendant was guilty before she heard the case.

Analysis

The right to a fair and impartial jury means potential jurors must fully and truthfully answer voir dire questions; otherwise, a defendant cannot properly exercise challenges for cause and peremptory strikes. State v. Martin, 755 S.W.2d 337, 339 (Mo.App.1988).

In seeking a new trial based on juror nondisclosure, a defendant first must demonstrate to the trial court that the nondisclosure actually occurred. State v. Miller, 250 S.W.3d 736, 743 (Mo.App.2008). When this is a factual question that involves conflicting testimony, we defer to the trial court’s determination as it is better positioned to judge witness credibility. State v. Coleman, 460 S.W.2d 719, 724 (Mo. banc 1970); State v. Robbins, 455 S.W.2d 24, 27 (Mo.App.1970). Where the trial court denies a new trial motion without making specific findings, we consider all findings necessary to the result to be implicit in the trial court’s decision. See Fielder v. Gittings, 311 S.W.3d 280, 290 (Mo.App.2010)(juror nondisclosure); Banks v. Village Enterprises, Inc., 32 S.W.3d 780, 787 (Mo.App.2000)(same). We review for abuse of discretion. Miller, 250 S.W.3d at 743.

Juror 12 testified that she had not prejudged Defendant’s guilt before trial, and she repeatedly denied making any such comment following jury selection. Defendant’s abuse of discretion argument hinges on the testimony of other jurors whom the trial court was not obligated to believe. See State v. Stillings, 882 S.W.2d 696, 700 (Mo.App.1994). Point II disregards our standard of review and the trial court’s superior position in judging witness credibility. Point denied.

Point III

Defendant contends that the trial court plainly erred when, after reading that part of MAI-CR3d 300.02 that asks if anyone could not follow the reasonable doubt instruction, the court voir dired only two of an unknown number of persons who raised their hands, then paraphrased the instruction.

Background

During voir dire, the trial court read MAI-CR3d 300.02 up through the following portion:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. The law does not require proof that overcomes every possible doubt. If, after your consideration of all the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you will find him guilty. If you are not so convinced, you must give him the benefit of the doubt and find him not guilty.
Are there any of you who, if selected as a juror, could not, for any reason, follow that instruction? If so, would you please raise your hand?

At least two venirepersons raised their hands. One indicated that he had physical problems that would make it hard for him to follow the evidence; he was excused without objection. Another started to say that she had a problem with this type of case because her granddaughter had dealt with a similar issue. The court politely stopped her and said they would take that up privately after the first recess. Then, not reading from MAI-CR3d 300.02, the court asked the venire:

My question specifically at this point, having given you the instruction about the presumption of innocence in our judicial system, is there any of you would [sic] could not, for any reason, keep your mind open and presume that the defendant is innocent until the state proves to you beyond a reasonable doubt that he is guilty? Anyone who could not follow that instruction?

A third venireperson expressed a need to speak privately, which the court noted, then asked, “Anybody else?” When no one responded, the court continued reading from MAI-CR3d 300.02, which states:

It is your duty to follow the law as the Court gives it to you in the instructions even though you may disagree with it. Are there any of you who would not be willing to follow all instructions which the Court will give to the jury? If so, would you please raise your hand?
[Introduce the attorneys and ask such additional questions as the Court deems appropriate.]

Defendant claims the trial court plainly erred in asking its own question whether anyone could not presume Defendant innocent until the State proved beyond a reasonable doubt that he was guilty, which Defendant characterizes as improper “paraphrasing” of or “deviation” from MAI-CR3d 300.02. Defendant argues that the court instead should have questioned all venirepersons who raised their hands.

Analysis

We do not see the court’s question as an MAI deviation. During any reading of MAI-CR3d 300.02, the panel is sworn, instructed on basic legal principles including the State’s burden of proof, then twice asked if it can follow the burden of proof instruction. Venirepersons are asked to raise their hands if they cannot follow that instruction, but MAI-CR3d 300.02 and its Notes on Use do not say what to do if that happens, so the court must use its discretion when hands are raised.

The nature and extent of voir dire questioning is within the trial court’s wide discretion; we will reverse only if discretion is abused. State v. Nicklasson, 967 S.W.2d 596, 608 (Mo. banc 1998). Defendant concedes that his claim was not preserved at trial and requests us to review it for plain error, the two-step test for which is “(1) did the trial court commit evident, obvious, and clear error affecting the defendant’s substantial rights; and (2) if so, did such plain error actually result in manifest injustice or a miscarriage of justice?” State v. Smith, 293 S.W.3d 149, 151 (Mo.App.2009). A defendant seeking plain error review must show more than mere prejudice. He must show that the error resulted in manifest injustice or a miscarriage of justice — ie., but for the error, the outcome would have been different. Id. Under these standards, Defendant has not made a case for relief.

As shown above, MAI-CRBd 800.02 concludes by directing venirepersons to raise their hands if they would not be willing to follow the court’s instructions (this is the second time the panel is instructed to raise its hands), then instructs the court to “[Introduce the attorneys and ask such additional questions as the Court deems appropriate ].” MAI-CR3d 300.02 thus does not preclude, but rather contemplates and expressly permits, additional appropriate questions by the court.

Moreover, the timing and nature of the court’s question was appropriate. At least one of the first two hand-raisers expressed concerns unrelated to the burden of proof instruction. It was no abuse of discretion to remind the whole panel that the court was not then asking for all information about their abilities to serve as jurors, but only whether they could follow a specific jury instruction. We deny Point III.

Points IV, V, VI and VII

Background

All these points allege that the court erroneously gave non-approved instructions during jury deliberations. The following facts are relevant to these points.

The jury received the case at 7:27 p.m. Friday, deliberated two hours, and sent out this note, “We cannot reach a decision. Eight not guilty. Four guilty, [/s/ Foreman]. What do we do? ? ?” The court wrote back, “Dear Jury, please continue to deliberate.” The jury sent another note at 10:45 p.m., “We are still split. Can I talk to you to see how to resolve?” The court called the jury back into the courtroom and these exchanges followed:

The Court: Has the count changed since, uh-
[Foreman]: No.
The Court: Is there any possibility that if, uh, you went home and got a good night’s sleep and started fresh in the morning that there would be any possibility at all?
[Foreman]: I don’t see it happening.
The Court: Are you all still discussing the issues?
[Foreman]: We have gone back to square one. I mean we can try it for another hour. That’s the reason I sent what I did.
The Court: Well, sometimes, as you know, you know fairly quickly and sometimes — There has been a lot of evidence in this ease. It’s been a long trial. It’s unusual for a jury to become irrevocably deadlocked after only three and a half hours when there has been seventeen or eighteen hours of testimony.
[Foreman]: Uh-huh. I mean if you are suggesting going and getting a night’s sleep and reconvening here and whatever, I don’t know, but to be honest with you I don’t think it’s going to happen. You can ask everybody’s opinion.
The Court: I’m kind of telling from the nodding of the heads there is probably not much disagreement about that. Is there any of you here that thinks there is any chance at all if you get a good night’s sleep and come back fresh that there might be any possibility at all? Some of you are not answering one way or the other.
[Foreman]: Well, I can tell you what we can do, you can stick us back in there for a half hour, about 11:30 I’ll let you know. You want to try that?
The Court: How many of you would rather go back — Here are the options that I see right now, you can work for a while longer tonight or we can go home, get some sleep, come back about 9:00 in the morning and take another good shot at it for a while and then if we don’t get there you will at least know that you’ve given it your absolute best shot. Sometimes — You folks have been working hard from 8:00 o’clock in the morning until 7:00 o’clock at night yesterday and 8:00 o’clock in the morning until now. Sometimes mental fatigue, uh, can cause you to not see any light at the end of the tunnel when you might actually see some there after seven or eight hours of sleep. How many of you are just brain dead right now, just really exhausted? How many of you would be willing to give it a fresh shot in the morning for a while? Okay. I mean there is a lot at stake here. I know that emotions among the parties and the alleged victims and the defendant are running high. The case has been pending for a long time. Thousands of hours of effort to prepare the case, present it to the jury have been put into this by both sides; lots of cost to taxpayers and I don’t want to give up and throw in the towel until you all are absolutely convinced that you have given it every possible shot.
[Juror 11]: What’s the difference between a hung jury and a mistrial?
The Court: Nothing.
[Juror 11]: Does it all get done over again?
The Court: A mistrial just means that the case was presented to a jury and the jury was unable to deliberate to a unanimous verdict of guilty or not guilty. Anything less than a unanimous verdict on[e] way or the other means that we just start over with a new jury panel and retry the case and hope that we end up with twelve jurors that can agree unanimously one way or the other.... It doesn’t mean, obviously, that the defendant has been found guilty. It doesn’t mean that he’s been acquitted. It means that nothing has happened and we just go back and try the case again is what happens.

After further discussion with counsel and the jury, the court decided, “I’m not going to declare a mistrial. I’m not going to send them back for further deliberations tonight. I’m not going to hammer them tonight. That’s the Court’s ruling.” The jury went home for the night and came back Saturday morning. After deliberating two hours and sending out two notes asking various questions, the jury sent this note, “We cannot reach a decision on anything.” Over Defendant’s objection, the court brought the jury in and gave the MAI-CR3d 312.10 hammer instruction:

You should make every reasonable effort to reach a verdict, as it is desirable that there be a verdict in every case. Each of you should respect the opinions of your fellow jurors as you would have them respect yours, and in a spirit of tolerance and understanding endeavor to bring the deliberations of the whole jury to an agreement upon a verdict. Do not be afraid to change your opinion if the discussion persuades you that you should. But a juror should not agree to a verdict that violates the instructions of the Court, nor should a juror agree to a verdict of guilty unless he is convinced of the defendant’s guilt beyond a reasonable doubt.

The jury returned to its deliberations and sent this note at 1:20 p.m., “If a guilty verdict is returned will the jury set the sentencing for punishment?” Over Defendant’s objection, the court wrote back, “Yes.” At 2:25 p.m., the jury returned verdicts finding Defendant guilty on one charge and not guilty on the other three counts. When polled, each juror agreed with the verdicts.

Point IV

Defendant seeks plain error review of his claim that the trial court erred when it told the jury:

I mean there is a lot at stake here. I know that emotions among the parties and the alleged victims and the defendant are running high. The case has been pending for a long time. Thousands of hours of effort to prepare the case, present it to the jury have been put into this by both sides; lots of cost to taxpayers and I don’t want to give up and throw in the towel until you all are absolutely convinced that you have given it every possible shot.

Defendant claims this constituted a non-MAI hammer instruction that omitted key parts of MAI-CR3d 312.10 (such as encouraging jurors to be tolerant, understanding, and considerate of others’ views); improperly included a non-MAI reference to taxpayer expense; and effectively coerced a verdict. We agree that the court’s comments did not track MAI-CR3d 312.10, but find no plain error.

The decision to give a hammer instruction rests within the trial court’s discretion, which is abused only if the instruction coerces the verdict. State v. Campbell, 147 S.W.3d 195, 202 (Mo.App.2004)(citing State v. Johnson, 948 S.W.2d 161, 164 (Mo.App.1997)). A verdict is considered coerced when it appears, under all the circumstances, that the trial court was virtually directing that a verdict be reached and implying that it would hold the jury until that happened. Id. Relevant factors include: (1) how long the jury deliberates before and after the hammer instruction, (2) whether the trial court knows the jury split and the position of the majority, and (3) if the instruction is given in compliance with MAI’s Notes on Use. Id.

We considered a similar argument in Campbell — that comparable trial court comments were erroneous because they did not include certain MAI-CR3d 312.10 safeguards. Id. at 201-02, 203. We were guided by cases that found no error where a trial court “makes a comment not requiring the jury to find a verdict, but merely to continue its deliberations,” and noted that these cases “require that the court make an unequivocal statement that the jurors must reach a verdict in the case.” Id. at 203 (citing State v. Hinkle, 987 S.W.2d 11, 13-14 (Mo.App.1999); Johnson, 948 S.W.2d at 164).

We also considered the three coercive factors noted above, finding noncompliance with the Notes on Use, but that the other two factors weighed against a finding of coercion. Id. First, the Campbell jury took over two hours to reach a verdict after the court’s comments, and “Missouri courts have found that a time period as short as approximately one-half hour was not a sign that the verdict was coerced.” Id. Second, the Campbell trial court knew how the jury was split, but not whether the majority favored conviction or acquittal. Id. at 203-04.

In this case, the .trial court did not unequivocally tell the jury that a verdict must be reached. Asking jurors to “give[ ] it every possible shot” is not the same as ordering them to return a verdict.

Moreover, even if the court here did not follow the Notes on Use and knew that most jurors favored acquittal, we cannot conclude that the Friday night comments coerced a verdict on Saturday afternoon. The court sent the jurors home, not back to the jury room, after its comments. After two hours of deliberations the next day, the court read the jury MAI-CR3d 312.10 — arguably curing any error from the night before — after which the jurors deliberated another three hours before reaching any verdicts. A night of sleep, an MAI-approved hammer instruction, and over five hours of deliberations separated the challenged comments from the verdict. Defendant has not shown plain error. Point IV is denied.

Point V

Defendant claims the trial court erred in twice telling jurors that a mistrial would require a retrial of the case. There were no timely objections, nor are we persuaded by Defendant’s invitation to overlook these failures, so any review is for plain error.

Defendant cites Rule 28.02 and argues that a court cannot give a non-MAI instruction on a matter covered by an MAI instruction. Although an accurate statement of law, we do not see its application as Defendant cites no MAI instruction regarding mistrials.

Seeking to link his point to some MAI, Defendant argues that MAI-CR3d 312.10 “begins by attempting to create the impression for the jury that they will be the only people to ever have the chance to reach a verdict.” Defendant cites no authority for his apparent speculation about the “impression” this instruction “attempt[s] to create.” Further, reversal is warranted for failure to give a mandatory MAI instruction only when the error is so prejudicial that it deprived the defendant of a fair trial. State v. Anderson, 306 5.W.3d 529, 538-39 (Mo. banc 2010). Defendant has not shown manifest injustice. Point denied.

Point VI

Defendant claims the court erred in giving the MAI-CR3d 312.10 hammer instruction. He argues that the court was coercing a verdict under the circumstances in that (1) the jury said it was deadlocked after two hours; (2) at the court’s urging, the jury deliberated another 75 minutes, but again reported deadlock; (3) the court then gave a “soliloquy” variation of the hammer instruction at 10:45 p.m. on Friday; (4) after two hours of Saturday morning deliberation, the court gave MAI-CR3d 312.10 after another report of deadlock; and (5) three jurors later testified that they felt they had been instructed that they had to return a verdict.

As noted under Point IV, the decision to give a hammer instruction is within the court’s discretion, which is abused only if the instruction coerces the verdict. Campbell, 147 S.W.3d at 202. The jury deliberated more than three hours after getting the hammer instruction. Defendant has not shown coercion. Point denied.

Point VII

Defendant asserts the trial court erred in not granting a new trial in that MAI-CR3d 300.06 is not to be reread or given to the jury when it retires to deliberate, yet during deliberations the court answered, ‘Tes,” to the jury’s question, “If a guilty verdict is returned will the jury set the sentencing for punishment?” Defendant claims this constituted bargaining with the jury to secure a guilty verdict.

We disagree for several reasons. First, the court neither reread MAI-CR3d 300.06 nor gave it to the jury when it retired to deliberate, and thus did not violate the Notes on Use. Second, what the court said was correct and the jury had been so instructed from the outset. Third, Defendant has not demonstrated that the answer prejudiced him.

A trial court has great discretion in determining whether to grant a new trial. Its decision is presumed to be correct and will be reversed on appeal only for an abuse of discretion. In order for the trial court to grant a motion for new trial, the error complained of as a basis for the motion must be prejudicial to the party seeking the new trial. The complaining party must show that some trial error or misconduct of the prevailing party was responsible for prejudicing the jury.

State v. Thompson, 147 S.W.3d 150, 155 (Mo.App.2004) (citations and quotation marks omitted). Defendant cites no admissible evidence that the court’s answer caused the guilty verdict and his speculative arguments do not substitute for evidence. The jury deliberated another hour after the court answered its question. We deny Point VII.

Point I

Defendant argues that the cumulative effect of his complaints under Points II through VII necessitate a new trial. “Having determined that none of defendant’s previous points amount to reversible error, there can be no reversible error attributable to their cumulative effect.” State v. Gray, 887 S.W.2d 369, 390 (Mo. banc 1994). “No amount of non-error adds up to eiTor; nor do the non-prejudicial errors in this case constitute reversible error.” State v. Gardner, 8 S.W.3d 66, 74 (Mo. banc 1999). Point I is denied.

Point VIII

This point challenges the sufficiency of the evidence to support the conviction. Child testified that Bob, her bus driver, “[tjouched my titties.” Defendant does not deny that he was Child’s bus driver, but claims this “is one of those rare and isolated cases where the prosecutrix’s testimony was so in conflict with itself and with physical facts as to require corroboration, and there is no corroboration on the record before this court.” Defendant thus invokes the oft-cited, but rarely applied, “corroboration” rule for sex offenses.

Corroboration Rule

In its broader form, this rule requires corroboration “where the evidence of the prosecutrix is of a contradictory nature or, when applied to the admitted facts in the case, her testimony is not convincing and leaves the Court clouded with doubts that she must be corroborated or judgment cannot be sustained.” State v. Kuzma, 751 S.W.2d 54, 58 (Mo.App.1987)(quoting State v. Ellis, 710 S.W.2d 378, 380 (Mo.App.1986) and State v. Baldwin, 571 S.W.2d 236, 239 (Mo. banc 1978)).

Other cases describe the rule more narrowly, saying that corroboration is needed only “‘when the victim’s testimony is so contradictory and in conflict with physical facts, surrounding circumstances, and common experiences that its validity is doubtful.’ ” State v. Peters, 186 S.W.3d 774, 778 (Mo.App.2006)(quoting State v. Sprinkle, 122 S.W.3d 652, 666 (Mo.App.2003)).

Our supreme court and sister districts have criticized the corroboration rule. The Western District in Peters complained of “the inconsistent and sometimes confusing evidentiary and appellate review rules that have evolved in sex offense cases,” raised the pertinent “question of why the standards used in every other case would not be sufficient and preferable,” found “no reason for a ‘corroboration rule’ as such,” but said it had “no authority to plow up a field previously planted with decisions of a higher court.” Id. at 779-80 & n. 4.

The Eastern District said this fifteen years earlier:

As the Missouri Supreme Court stated in 1930, there seems to be no logical basis for a separate rule, even a restricted one, which relates solely to the review of the testimony of a victim of a sexual offense. The standards for reviewing the testimony of any witness in a criminal case should be sufficient to assess the testimony of a victim of a sexual offense. Missouri courts of appeals have questioned the continued existence of this exception.

State v. Nelson, 818 S.W.2d 285, 289 (Mo.App.1991) (citations omitted). The 1930 case was State v. Barnes, 325 Mo. 545, 29 S.W.2d 156 (1930), in which the Missouri Supreme Court expressed the same views echoed decades later in Nelson and Peters, then said:

“We have been over this matter so frequently in recent cases that it should be unnecessary to cover the same ground again.”

Barnes, 29 S.W.2d at 158. Yet the corroboration rule has never been overruled and continues to be considered in Missouri cases, including this court’s decisions. See, e.g., State v. Miller, 250 S.W.3d 736, 744-45 (Mo.App.2008). Thus, we have sought to determine what the rule may require in this case.

Most cases citing the corroboration rule either find it inapplicable or easily met under the facts of that case. If the rule still exists, we cannot dismiss it so easily here, or fail to consider whether it might require more evidence than the constitutional due process standard. Cf. State v. Grim, 854 S.W.2d 403, 405-08 (Mo. banc 1993)(reexamining and rejecting the “circumstantial evidence” rule). To paraphrase Grim, our question is whether the due process standard and the corroboration rule “require a different quantum of evidence to support a conviction.” Id. at 406. If both yield identical results in all cases, we see no need for the corroboration rule “since it could only lead to confusion to have two rules for one standard.” Id. “If, on the other hand, the two rules sometimes yield different results in the same case, problems arise.” Id. If the corroboration rule could demand more evidence than required by due process, “we must consider what added quantum of evidence and convincing power is contemplated ... [and] how this differs from the [due process] standard for appellate review and the phrase ‘beyond a reasonable doubt.’ ” Id.

We are not authorized to answer all these questions, but we have reached one conclusion. Whatever the corroboration rule once meant or now means, we do not believe “a different quantum of evidence” is needed to support this conviction. MAI includes no “corroboration” instruction and no burden of proof modification for such cases. We now turn to consider Defendant’s challenge to the sufficiency of the evidence.

Background

Early in the case, the State successfully moved to have Child declared unavailable as a witness per §§ 491.075, 491.680 & 491.685. Her video depositions were shown to the jury at trial and included this testimony:

[State]: Did you ride the bus home when you went to school in Doniphan?
[Child]: Yes.
[State]: What was your bus driver’s name?
[Child]: Bob.
[State]: Did Bob do something to you that you didn’t like?
[Child]: Yes.
[State]: What did he do?
[Child]: He touched my pee-pee.
[State]: Do you want a tissue?
[Child]: No.
[State]: Did he do anything else that you remember?
[Child]: (Witness nodded head).
[State]: What else did he do?
[Child]: I don’t want to tell.
[State]: [Child] can you say that again?
[Child]: I don’t want to tell.
[State]: [Child], we need you to tell us what he did.
[Child]: Touched my titties.

Defendant acknowledged that he was Child’s bus driver. Also, Child’s father so testified and identified Defendant by pointing at him in court.

Analysis

The foregoing testimony, even if uncorroborated, ordinarily would support Defendant’s conviction. “Generally, in sexual offense cases the victim’s testimony alone is sufficient to sustain a conviction, even if uncorroborated.” Sprinkle, 122 S.W.3d at 666, quoted in Peters, 186 S.W.3d at 778.

Defendant acknowledges this general rule, but asserts that corroboration was needed because:

1.Child gave several statements, but only once said that her chest had been touched;
2. Child twice identified a photo of someone other than Defendant as being her bus driver; and
3. According to Defendant, Child recanted “nearly every substantive allegation” of abuse, said “T don’t knov/ at least 95%” of the time when questioned on details, and gave details contrary to undisputed evidence.

We consider these arguments in turn.

The State does not deny that in two forensic interviews, Child did not say that Defendant touched her chest. The jury viewed these interviews in them entirety and knew what Child said and did not say. This was just one factor for the jury to consider in deciding whether it believed Child’s testimony that Defendant “[t]ouched my titties.”

Defendant argues that at two video depositions, his lawyer showed Child a man’s photo (not Defendant) and Child said it was her bus driver. Later, defense counsel showed Child a photo of Defendant and she did not recognize him.

There had to be evidence that Defendant was the perpetrator, but in-court identification was not necessary if the jury reasonably could infer identity from other evidence. See State v. Simmons, 760 S.W.2d 521, 523-24 (Mo.App.1988). There was such evidence, and a police officer’s testimony suggested a reason or contributing factor as to Child’s error. Thus, Child’s mistake was a factor for the jury to consider, but did not compel an acquittal. Id.

The inconsistencies and discrepancies in Child’s testimony “ ‘must relate directly to an essential element of the case’ ” to trigger the corroboration rule. Peters, 186 S.W.3d at 778 (quoting State v. Gatewood, 965 S.W.2d 852, 856 (Mo.App.1998) and State v. Marlow, 888 S.W.2d 417, 422 (Mo.App.1994)). Notwithstanding inconsistencies on other matters, when Child was told at 'deposition that she needed to say what Bob did to her, she did not say, “I don’t know.” She said that he “[tjouched my titties,” and she never recanted that statement. The jury did not need corroboration to find that Defendant touched Child’s breasts. Cf. State v. Marley, 257 S.W.3d 198, 200 (Mo.App.2008)(despite “a number of inconsistencies, contradictions, and outright admitted falsifications,” child testified unequivocally that defendant penetrated her vagina).

In summary, the prosecution’s case plainly had weaknesses. After charging Defendant with nine sex offenses against four children, the State dropped all but four counts involving Child and another youngster. Following two days of trial, 18 live witnesses, nine videos and other evidence, and over eight hours of deliberation spanning two days, the jury found Defendant not guilty on three counts and guilty on one.

In reaching these verdicts, the jurors were well versed in the inconsistencies, contradictions, and credibility issues regarding the State’s witnesses generally and Child in particular. They viewed five separate videos of Child being questioned, examined, and cross-examined — sometimes quite persistently — on five separate occasions. In each such instance, the jurors could judge Child’s demeanor, see how she was questioned, and evaluate the way she responded. They could weigh all the weaknesses and flaws that defense counsel argued in summation, and which undoubtedly contributed to the three acquittals.

Yet other inconsistencies and contradictions aside, Child testified that Bob, her bus driver, “[tjouched my titties” and never recanted that claim. The jury was fully aware of the reasons to disbelieve her, yet unanimously found Defendant guilty on that charge. Each, juror, one by one, agreed that this was his or her verdict.

Defendant’s insufficiency arguments in this court are essentially those that he made to the jury, where in a sense they were 75% successful. Only by reweighing the same evidence — something we cannot do — could we take away the single guilty verdict. We do not sit as a “super” juror with veto powers. Grim, 854 S.W.2d at 414; State v. Jones, 296 S.W.3d 506, 509-10 (Mo.App.2009). Given this jury’s many notes and questions and lengthy deliberations, we are reluctant to suggest that these citizens acted less responsibly, or took their obligation less seriously, in finding Defendant guilty of one charge than in acquitting him on three.

Point VIII, in essence, “asks that we look at all these circumstances and find that the victim’s testimony was so incredible and untrustworthy that we should disregard it unless corroborated. That is not our role.” Marley, 257 S.W.3d at 200. We deny the point and affirm the conviction.

RAHMEYER, J„ and MCGHEE, Sp.J., concur.

      . See § 566.067 (first-degree child molestation). Unless otherwise indicated, statutory citations are to RSMo Supp.2006; rule refer-enees are to Missouri Court Rules (2008); and "MAI-CR3d” is Missouri Approved Instructions-Criminal, 3rd Edition.

      . After the State objected to testimony about jury deliberations, an offer of proof was made during which Juror 10 testified that Juror 12 admitted making the statement. Such testimony concerns an event during jury deliberations and the trial court properly excluded it. See note 6 infra and cases cited therein.

      . The right of a defendant to have the jury polled is recognized by Rule 29.01(d). State v. Harding, 734 S.W.2d 871, 875 (Mo.App. 1987).
      [T]his rule “is of ancient origin and of basic importance. The object is to give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned and thus to enable the court and the parties to ascertain with certainty that a unanimous verdict has in fact been reached and that no juror has been coerced or induced to agree to a verdict to which he has not fully assented.”

        Id. at 875-76 (quoting Miranda v. U.S., 255 F.2d 9, 17 (1st Cir. 1958)).

      . Cf. State v. Green, 307 S.W.3d 197, 202-03 (S.D. Mo.App.2010)(jury's receipt of proper trial court instruction defining reasonable doubt “cures any harm from an erroneous statement of reasonable doubt by the prosecutor"); State v. Garrison, 292 S.W.3d 555, 560 (Mo.App.2009)(quoting State v. Wheeler, 219 S.W.3d 811, 816 (Mo.App.2007))(any prejudice from direct reference to defendant’s failure to testify " 'can normally be cured by an instruction to the jury.’ ”).

      . This distinguishes Burroughs v. U.S., 365 F.2d 431, 433-34 (10th Cir.1966), cited by Defendant, in which the jury returned a ver-diet 15 minutes after the trial court’s comments.

      . Defendant argues, as he did in Point IV, that the jurors felt they had been ordered to reach a compromise verdict. Whether a juror understood the court’s instructions will not be inquired into. See McPherson v. David, 805 S.W.2d 260, 262 (Mo.App.1991). If verdicts could be set aside for such reasons, virtually all litigation would be without conclusion. Id. Indeed, subject to rare excep- ' tions not applicable here, jurors will not be heard to impeach their verdict. Harding, 734 S.W.2d at 875. “[Jjurors speak through their verdict, and cannot be allowed to violate secrets of the jury room and tell of any partiality or misconduct that transpired there, nor speak of methods which induced or operated to produce the verdict, and this has become the settled law of this state.” Id. (quoting State v. Keller, 104 S.W.2d 247, 249 (Mo.1937) (citations omitted)). The testimony cited by Defendant was inadmissible and cannot be considered.

      . The trial court, as required, read MAI-CR3d 300.06 after the jury was sworn and before any other instruction. This instruction addressed various matters and consisted of seven paragraphs, one of which read as follows:
      If you find the defendant guilty in this first stage of the trial, a second stage of the trial will be held. During the second stage, additional instructions will be read to you by the court, additional evidence may be presented, and the attorneys will make their arguments as to punishment. With the additional instructions of the court, you will return to the jury room, deliberate, and determine the punishment to be assessed.

      . See note 6 supra.

      . That said, we agree with Peters, which essentially rejected the broad version of the rule because it encourages "independent assessments of the victim's testimony to determine credibility,” and thus “edges appellate courts into a fact-finding role.” Peters, 186 S.W.3d at 779. Therefore, like the Peters court (see Id. at 778-79), we are not persuaded by Defendant’s primary reliance on Kuzma, a case that cited and applied this broad version. See Kuzma, 751 S.W.2d at 58 (quoting the "leaves the Court clouded with doubts” standard), 59 ("Taken as a whole, the child’s identity testimony leaves the mind of the court clouded with doubts, and, therefore, requires corroboration.”).

      . From Child’s questioning by defense counsel at an October 2007 video deposition:
      Q. Let me show you what we’ve marked as Defendant’s Exhibit B. Is that your bus driver?
      A. I — yes.
      Q. Is this the person that you call Bus Driver Bob?
      A. Yes.
      Q. Is this the person that you are saying did something to you?
      A. Yes.
      Q. Let me show you what we have marked Defendant’s Exhibit D, [Child], That’s a picture. Did that person in that picture ever drive your bus?
      A. I don’t know.
      Q. You don’t know whether Exhibit D drove the bus or not?
      A. I don’t know.
      Q. You think so or you don’t know?
      A. I don't know.
      Q. You don’t think this person did?
      A. Huh-uh. I don’t know.
      Q. But, Exhibit B is the person you call Bus Driver Bob?
      A. Yes.
      Exhibit D was a photo of Defendant, Exhibit B was not. Later, defense counsel again questioned Child at a January 2008 video deposition:
      Q. Let me hand you what we’ve marked Exhibit F. And what about this person: Did he drive your bus?
      A. Yes.
      Q. Did he drive the bus pretty much every day, the person in Exhibit F?
      A. Yeah.
      Q. Did the person that you've says — that you say is bob in Exhibit F, did he drive the bus while you were on it every day or was sometimes another driver driving the bus?

        A. He drive the bus all day. And except only one day a different bus driver drove my bus.
      Q. Would you recognize a picture of the bus driver that drove the bus the one day?
      A. No. I don’t remember.
      Q. Here’s Exhibit D as in dog. Is that the person who drove the bus one day?
      A. I don’t know.
      Exhibit F was the same photo as Exhibit B at the prior deposition. Exhibit D again was Defendant’s photo.

      . Having watched three videos of defense counsel questioning Child, jurors could have concluded that one defense tactic was to provoke Child to say "I don’t know” as often as possible.


text:
    MISSOURI DISTRICT CHURCH OF THE NAZARENE, Michael Palmer, and John Bouldrey, Appellants/Cross-Respondents, v. FIRST CHURCH OF THE NAZARENE OF CARUTHERSVILLE, et al., Respondents/Cross-Appellants.
    Nos. SD 29813, SD 29817.
    Missouri Court of Appeals, Southern District, Division Two.
    May 12, 2010.

      Robert A. Useted, Fred L. Vilbig, David A. Castleman, Kohn, Shands, Elbert, Gia-noulakis & Giljum, LLP, St. Louis, for Appellants/Cross-Respondents.
    James E. Reeves, W. Edward Reeves, Ward & Reeves, Caruthersville, for Respondents/Cross-Appellants.
   DANIEL E. SCOTT, Chief Judge.

This litigation arises from a church rift and resulting dispute over ownership of church property. The circuit court decided the various claims and counterclaims by summary judgment, but on the record before us neither party proved its right to judgment as a matter of law. We reverse and remand.

Background

Missouri District Church of the Nazarene (“District”) sued First Church of the Nazarene of Caruthersville and others (collectively “First Church”) for ejectment, quiet title, and breach of fiduciary duty. The petition alleged in part that:

• First Church “is a former member of the Nazarene Church and a presently disorganized, but former local member church of the District.”
• “The Manual of the Church of the Nazarene (the ‘Manual’) is the Bylaws for every local member church and governs all activities of the Nazarene Church, including the acquisition of property in the name of the church.”
• District’s governing body is its District Advisory Board.
• Per the Manual, if a local church becomes disorganized, title to its property shall pass to District “for the use of the Church of the Nazarene at large, as the district assembly shall direct.”
• First Church had been disorganized and declared inactive by due action of the District Advisory Board.

District’s petition primarily sought an adjudication that District now owned and was entitled to possess First Church’s real estate.

First Church filed an answer denying that it was ever a “member” of District or that it was “disorganized,” and stating that District’s corporate charter limits its membership to members of the District Advisory Board, of which First Church was never a member. First Church denied that the Manual governed disposition of First Church’s property, and stated that First Church was in good standing and its board had not designated District to receive its property. First Church counterclaimed for conversion and misappropriation of First Church funds and property, malicious litigation, slander of title, and malicious prosecution.

Just three months after filing its pleadings, First Church sought summary judgment in its favor on all claims and counterclaims. District did not file its own motion, but it was agreed at the motion hearing to treat District’s defensive filings as a counter-motion for summary judgment. The circuit court heard argument, took the issues under advisement, and rendered summary judgment:

1. In favor of First Church on District’s ejectment, quiet title, and breach of fiduciary duty claims and on First Church’s counterclaim for conversion and misappropriation.
2. In favor of District on First Church’s malicious litigation, slander of title, and malicious prosecution counterclaims.

Each party appeals the judgments entered in favor of the other, and agrees that the core issue is whether District or First Church is the rightful owner of the subject real estate under neutral principles of law.

Summary Judgment Principles

We review a summary judgment de novo, giving no deference to the trial court. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). This differs significantly from our review of court-tried cases. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)(we must affirm judgment in court-tried case “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law”); Truck Ins. Exchange v. Prairie Framing, LLC, 162 S.W.3d 64, 95 (Mo.App.2005).

Summary judgment is improper unless the motion, response, reply and sur-reply show no genuine issue as to any material fact. Amusement Centers, Inc. v. City of Lake Ozark, 271 S.W.3d 18, 19 (Mo.App.2008). “The key to summary judgment,” however, “is the undisputed right to judgment as a matter of law; not simply the absence of a fact question.” ITT, 854 S.W.2d at 380.

These principles force us to reverse and remand. Key issues remain in dispute and the uncontroverted facts do not prove either party’s right to judgment as a matter of law.

Analysis

We begin with the summary judgments in favor of First Church. District’s claim to the property is not based on record title, but on the Manual. First Church argues two reasons why such claim must fail: (1) the Manual does not apply because First Church was not a District “member” and did not intend to be bound by the Manual; and (2) even if the Manual did apply, District did not follow the Manual’s relevant provisions in purporting to “disorganize” First Church. The parties hotly disputed these membership, intent, and Manual-compliance issues in their summary judgment filings and still dispute them in this court.

Most of the uncontroverted facts are evidentiary in nature, some favoring District and others supporting First Church. The parties build competing arguments on the facts and inferences that favor themselves and minimize or ignore the facts supporting their opponent. For example, regarding First Church’s “membership” and intent to be bound by the Manual, District cites First Church’s request and receipt of District approval on decisions to borrow money, purchase church property, expand the sanctuary, and add church staff; and that First Church sent representatives to denominational meetings and submitted annual reports to District “which contained numerous citations to the Manual.” First Church counter-argues evidence of its independence, such as its acquisition and ownership of property in its own name and with its own funds; its separate corporate existence predating District’s incorporation; and its non-compliance with requirements that “each local church” adopt charter provisions (1) adopting the Manual as its by-laws and (2) that upon dissolution, its assets should go to the District Advisory Board.

Such arguments, like others by the parties, are appropriately directed to a factfinder authorized to weigh evidence, draw favorable inferences, consider credibility, and believe all, part, or none of any party’s proof, but they are antithetical to summary judgment practice. Summary judgment is improper when the record includes competent evidence of two plausible but contradictory accounts of essential facts. Amusement Centers, 271 S.W.3d at 19. It is proper to weigh competing evidence at a trial, but “such is not the case where the same question is presented in the context of a motion for summary judgment.” See Great Rivers Habitat Alliance v. City of St. Peters, 246 S.W.3d 556, 563-64 (Mo.App.2008).

“The key to summary judgment is the undisputed right to judgment as a matter of law.” ITT, 854 S.W.2d at 380. That is, do uncontroverted facts lawfully yield one result and no others? See Truck Ins. Exchange, 162 S.W.3d at 95 (no right to judgment as a matter of law if court “cannot hold that the facts could lead to no other legal result”).

First Church’s summary judgment arguments fail because they hinge on disputed issues that can be resolved only by weighing the evidence. Faring no better are the judgments favoring District on First Church’s counterclaims for malicious prosecution, malicious litigation, and slander of title. Malice was an issue in all these claims and could be determined only by weighing the evidence pro and con.

Conclusion

We do not fault the circuit court or parties for seeking to quickly end this unpleasant dispute, but this is not a case where the record and reasonable inferences, especially when viewed most favorably to the non-movant, could yield only one legal result. Moreover, although evidence can be weighed at a trial, this cannot be done when the same issues are raised by summary judgment motion.

We do not reach the merits of the case. We find only that summary judgment was inappropriate. We reverse the judgment in all respects and remand for further proceedings.

LYNCH, P.J., and RAHMEYER, J., concur.

      . We present only the information necessary for resolution of these appeals.

      . For ease of discussion, we will refer to counterclaim-defendants Palmer, Bouldrey, ■ and District collectively as "District.”

      . The motion reserved the issue of counterclaim damages for a later hearing.

      . In resolving religious property disputes, Missouri courts follow a neutral principles approach that relies on state property and trust law rather than religious doctrine. Presbytery of Elijah Parish Lovejoy v. Jaeggi, 682 S.W.2d 465, 467 (Mo. banc 1984). Courts may consider record title, deed language, relevant statutes, and church documents providing guidance or instruction on the ownership of church property, but must scrutinize the latter in secular terms without relying on religious precepts or concepts. Reorganized Church of Jesus Christ of Latter Day Saints v. Thomas, 758 S.W.2d 726, 729 (Mo.App.1988). Since we reverse and remand on procedural grounds, we need not further consider these principles at this time.

      . Malicious publication is a requisite for a slander of title action. See In re Idella M. Fee Revocable Trust, 142 S.W.3d 837, 842 (Mo.App.2004).

      . This is why we have noted that summary judgment "is particularly inappropriate” when an underlying issue is state of mind, motivation, or intent. See Amusement Centers, 271 S.W.3d at 22.

      . See ITT, 854 S.W.2d at 376.


author: PAUL MCGHEE, Senior Judge.

text:
    David ADAMS, Landon Adams b/n/f David Adams, and La Crysta Adams b/n/f David Adams, Plaintiffs-Respondents, v. Timothy KING d/b/a T.K. Stucco, Defendant, and Shelter Mutual Insurance Co., Defendant-Appellant.
    No. SD 30106.
    Missouri Court of Appeals, Southern District, Division Two.
    May 18, 2010.

      Samuel P. Spain, Spain, Miller & Spain, LLC, Poplar Bluff, for Appellant.
    E. Ryan Bradley, Clayton, for Respondents.
   PAUL MCGHEE, Senior Judge.

On November 11, 2005, Mrs. La Jena Adams was driving her Buick automobile south on U.S. Highway 63 in Thayer, Missouri, with her two minor children, Landon and La Crysta Adams, as passengers. Mr. Timothy King (King) was driving his Dodge pickup truck north on the highway and the two vehicles collided. Mrs. Adams died as a result of the collision, and the children were injured.

Mr. David Adams filed suit against King for the wrongful death of his wife and on behalf of his children (collectively Plaintiffs) for their injuries. Their petition alleges that the collision was caused by the negligence of King, including an allegation that he was driving on the wrong side of the highway. King denies that he was negligent, and the issue of his liability has not been resolved as the claims against him remain pending in the trial court.

Plaintiffs joined Shelter Mutual Insurance Company (Shelter) as a defendant to recover $200,000 under the uninsured motorists provisions in three Shelter insurance policies on three vehicles owned by the Adams family. The Shelter policies provide that “we will pay damages for bodily injury sustained by an insured which that insured, or that insured’s legal representative, is legally entitled to recover from the owner or operator of an uninsured motor vehicle.” The first count against Shelter in the initial petition is for breach of contract, in which Plaintiffs pray for judgment against Shelter for $200,000. The next count against Shelter is for vexatious refusal to pay, and the last count against Shelter is for a declaratory judgment that Plaintiffs are entitled to uninsured motorists benefits under all three Shelter policies.

At the time of the collision, King, then a resident of Louisiana, had a policy issued and delivered in Louisiana by USAA Casualty Insurance Company (USAA) on his pickup truck which was registered, licensed, and principally garaged in Louisiana. It was not registered in Missouri, nor was it required to be registered in Missouri. The policy provides bodily injury liability coverage of $10,000 per person and $20,000 per occurrence. It also provides that if an auto accident occurs outside of Louisiana, the policy “will provide at least the minimum amounts and types of coverage required by law.” (Emphasis added). USAA sent a letter to Plaintiffs’ attorney stating that it was obligated to increase the policy limits to $25,000 per person and $50,000 per occurrence, and offered to pay $50,000 under its policy. The trial court entered summary judgment finding that King was not an operator of an uninsured motor vehicle because his USAA policy provided liability coverage in the minimum amounts required by Missouri law.

Plaintiffs appealed, and this court reversed the judgment upon determining that no Missouri law required King to have liability insurance of $25,000 per person and $50,000 per accident. See Adams v. King and Shelter Mut. Ins. Co., 275 S.W.8d 324, 328 (Mo.App.2008). This couit also determined that, by its policy language, USAA was not obligated by any law to pay the Missouri statutory minimums, and the fact that USAA offered to pay the Missouri mínimums did not override the language of the policy. Id. The case established that under the Shelter policies, King was operating an uninsured motor vehicle. Id.

Following remand, on April 15, 2009, the trial court entered summary judgment on Count VII of the initial petition for a declaratory judgment. The judgment declared that “Plaintiffs are entitled to uninsured motorist benefits from Defendant Shelter in the amount of $200,000.” The judgment was interlocutory as it did not mention the breach of contract count or the vexatious refusal count that remained pending against Shelter. The court did not expressly declare, under Rule 74.01(b), that there was no just reason for delay in entering the judgment. Shelter did not appeal from this judgment.

On May 18, 2009, Plaintiffs filed a motion for leave to file an amended petition, and they filed the amended petition with leave on June 19, 2009. As to Shelter, the amended petition contains Count VII for breach of contract and Count VIII for vexatious refusal. The amended petition does not contain a count for declaratory judgment.

Plaintiffs and Shelter submitted on stipulated facts Plaintiffs’ claim against Shelter for breach of contract. They stipulated that the combined limits of the uninsured motorist coverage in the three Shelter policies were $100,000 per person and $200,000 per occurrence. They also stipulated that the combined damages of Plaintiffs exceeded $225,000, and that USAA continued to offer $50,000 in settlement of all claims against King. The stipulation does not address the liability of King, and Shelter does not concede that he is liable.

The trial court entered summary judgment on June 19, 2009, finding that Plaintiffs were entitled to judgment against Shelter for $200,000 on Plaintiffs’ breach of contract claim. This judgment does not mention the April 15, 2009, judgment. However, the docket entry for the filing of the June 19, 2009, judgment includes this: “(A prior judgment was filed on April 15, 2009. Each judgment mentions an award amount. There is only one monetary award against Shelter).” Plaintiffs later dismissed the vexatious refusal count without prejudice. Pursuant to Rule 74.01(b), the trial court entered an order on September 18, 2009, finding that no issues remained between Plaintiffs and Shelter, and that there was no just reason for delay of an appeal from the last judgment.

Shelter appeals from this breach of contract judgment, contending that the trial court erred in entering judgment for $200,000 because the three Shelter policies may be stacked only in the amounts of the minimum requirements of the Motor Vehicle Financial Responsibility Law of $25,000 per person and $50,000 per occurrence. It argues that stacking the three Shelter policies should result in a total of $150,000 less the $50,000 offer from USAA, leaving Plaintiffs entitled to recover only $100,000 from Shelter. Shelter asks this court to reverse and remand the case to the trial court for entry of a judgment for Plaintiffs in the amount of $100,000. In the alternative, Shelter asks for remand for entry of a judgment for Plaintiffs in the amount of $130,000, that being the result of subtracting from $150,000 the coverage per occurrence of $20,000 in King’s policy before the additional coverage offered by USAA.

Shelter also claims that it “is entitled to credit for the amount of Plaintiffs’ recovery from the tortfeasor’s liability insurance,” although USAA had not paid Plaintiffs. The Shelter policies provide in their uninsured motorists coverage that any amount paid or payable by Shelter will be reduced by any amount paid or payable for the same damages to or for an insured, by or for any person who is legally liable, or may be held legally liable, for bodily injury to its insured. Section 379.203.4, RSMo 2000, concerning uninsured motorist coverage, provides:

In the event of payment to any person under the coverage required by this section, and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made....

Plaintiffs maintain that they are entitled to the full amount of $200,000 without any credit for King’s coverage. They also contend that the April 15, 2009, declaratory judgment was a final judgment binding upon the parties, leaving no issues for this court to consider.

Rule 81.01 provides that the right of appeal in civil cases shall be as provided by law. Section 512.020, RSMo' Cum. Supp.2008, authorizes an appeal only from a final judgment, with certain exceptions not applicable in this case. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). The statute further provides that a failure to appeal from any action or decision of the court before final judgment does not prejudice the right of the party failing to appeal to have the action of the trial court reviewed on appeal from the final judgment. It does not authorize an appeal from the interlocutory judgment entered on April 15, 2009. The lack of an appeal from that judgment does not preclude us from considering the issues in this appeal.

The determination by the trial court under Rule 74.01(b) that the June 19, 2009, judgment is final and appealable is not conclusive. This court must sua sponte determine its authority in the appeal from this judgment, as it is a prerequisite to appellate review that there be a final judgment. Gibson, supra. If the trial court judgment is not final, the appeal must be dismissed. Id. Notwithstanding the trial court’s certification of the judgment under Rule 74.01(b), any opinion by this court on the issues in this appeal would be an advisory opinion.

An opinion that is based on a hypothetical is an advisory opinion which courts are barred from issuing. Bush v. Director of Revenue, 139 S.W.3d 610, 611 (Mo.App.2004); American Family Mut. Ins. Co. v. Nigl, 123 S.W.3d 297, 300 (Mo.App.2003). “We cannot and do not render advisory opinions.” In the Matter of the Estate of Van Cleave, 574 S.W.2d 375, 376 (Mo. banc 1978). “[W]e deem it unwise to abandon our long-established practice of refusing to render advisory opinions upon the request of party litigants.” International Telephone and Telegraph Corp. v. Smith, 687 S.W.2d 194, 195 (Mo. banc 1985). This court also refuses to render advisory opinions. Gattermeir-Elliott Real Estate Co., LLC v. K.H., Inc., 184 S.W.3d 188, 191 (Mo.App.2006).

Resolution of the issues presented in this appeal depends on unsettled issues, including whether King is legally liable for Plaintiffs’ damages; whether USAA will maintain its offer to pay Plaintiffs $50,000 for the release of King; whether Plaintiffs will accept the offer; and whether Plaintiffs will receive proceeds of any settlement or judgment from King or an organization legally responsible for the damages other than USAA. We will not issue an advisory opinion. The appeal is dismissed without prejudice.

LYNCH, P.J., and RAHMEYER, J., concur.

      . Although Shelter states in its brief that the "money is on the table" from USAA and that all Plaintiffs have to do is accept the offer, there is nothing in the record before us showing that the offer is irrevocable.

      . Missouri Court Rules (2009).