author: LAURA DENVIR STITH, Judge.

text:
    Richard THOMAS, Appellant, v. SPECIAL OLYMPICS MISSOURI, INC., Respondent.
    No. WD 57608.
    Missouri Court of Appeals, Western District.
    Sept. 26, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 31, 2000.

      M. Corinne Corley, Kansas City, for appellant.
    Roger Paul Wright, Blue Springs, for respondent.
    Before Presiding Judge HAROLD L. LOWENSTEIN, LAURA DENVIR STITH, and Judge THOMAS H. NEWTON.
   LAURA DENVIR STITH, Judge.

Richard Thomas sued Special Olympics of Missouri, Inc. (Special Olympics), for intentional infliction of emotional distress and prima facie tort based on its refusal to reinstate him as a member of that organization in the fall of 1996. The trial court granted Special Olympics’ motion for summary judgment on both theories. It did so based on Mr. Thomas’ failure to controvert Special Olympics’ showing that its decision was based, at least in part, on a desire to avoid a repetition of the disruptive behavior it believed Mr. Thomas had engaged in when previously a member of the organization, rather than based on a desire to cause Mr. Thomas extreme emotional distress. Mr. Thomas appeals, alleging that his affidavit created a factual issue as to whether Special Olympics knew that he would suffer emotional distress when it refused to reinstate him, yet still refused to do so. He asserts that the existence of this factual issue precluded the grant of summary judgment. We disagree.

Once Special Olympics presented evidence that its decision was motivated, at least in part, by a desire other than a desire to injure Mr. Thomas, it was entitled to summary judgment on his claim of intentional infliction of emotional distress unless he provided countervailing evidence sufficient to create a factual issue as to whether Special Olympics’ sole purpose in refusing to reinstate him was to cause him extreme emotional distress. Mr. Thomas’ evidence that he believed that Special Olympics knew that he would suffer emotional distress when it refused to let him participate in the organization was not adequate to meet this burden. Accordingly, the trial court properly granted Special Olympics summary judgment on this theory.

Similarly, both because a necessary element of a claim for prima facie tort is proof of an actual intent to injure, that is, actual malice, and because a party cannot resort to prima facie tort merely to overcome an inability to prove one element of a nominate tort, the trial court properly granted summary judgment on Mr. Thomas’ claim of prima facie tort as well. Accordingly, we affirm that ruling also.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Thomas is a person with some degree of mental retardation. For some time prior to July 1, 1993, he participated in a variety of athletic events sponsored by Special Olympics. During that period, various other Special Olympics participants lodged complaints with the organization concerning Mr. Thomas’ behavior at Special Olympics’ events. The complaints ranged from claims that he exhibited poor sportsmanship, lacked social skills, and showed disrespect for coaches and other personnel, to claims that he harassed other athletes, yelled at members and participants, and placed telephone calls to family members of employees.

In response to these complaints, officials at Special Olympics issued written warnings to Mr. Thomas on a number of occasions in 1991 and 1992. In those warnings it advised him that, while he was welcome to continue participating in Special Olympics so long as his behavior was acceptable, he would no longer be permitted to participate if he failed to control his behavior. Eventually, Special Olympics officials decided that Mr. Thomas should not be permitted to remain in the program if his behavior was as suggested in the complaints made about him, and they informed him that they would be conducting an investigation into these allegations.

After learning of the investigation, Mr. Thomas wrote Special Olympics a letter, dated June 1, 1993, which stated in part: “I’m going to save you the time of doing a(sic) investigation and suspending me I QUIT i(sic) want nothing to do with your office or any of it’s (sic) program it has.” On June 23, 1993, Ms. Jan Present, Area IV Director for Kansas City Metro Special Olympics, sent copies of correspondence with Mr. Thomas to Ms. Susan McDer-mott, the Director of Field Services for Missouri Special Olympics, and wrote that, based on these complaints and on Mr. Thomas’ past behavior, she believed that Mr. Thomas should not be permitted to further participate in the KC Metro Special Olympics Program:

Enclosed please find copies of the letters from Jackson County Parks and Recreation, to Rick Thomas and his response back to them. I think my feelings about Mr. Thomas are pretty clear, in regards to finding another agency in the KC Metro program to “pawn” him off to.
Mr. Thomas has now been through three programs, including Jackson County Parks and Recreation in Area IV and has been removed from all three programs because of disciplinary problems. I do not feel it is fair for another agency to have to accept and put up with Mr. Thomas’ behavioral problems and misconduct. As well, in his response to the letter he received from Jackson County Parks and Rec he denies “calling family members of their office.” According to Darryl Corwin, Rick did indeed call and harass an employee’s family member. I would put a lot more credibility in Darryl Corwin’s word than Rick Thomas.
My feelings are that Mr. Thomas should not be allowed to continue to participate in the KC Metro Special Olympics program. Please give me a call so we may discuss the situation so that I may respond to him in a timely manner.

Following this series of letters between Mr. Thomas, local, and regional Special Olympics officials, Ms. McDermott sent Mr. Thomas a letter on July 1, 1993 stating that he could no longer participate in Special Olympics. That letter showed that a copy of it had been sent to the new Executive Director of Missouri Special Olympics, Mark Musso. Mr. Thomas requested that the accrediting organization for Special Olympics, Special Olympics International, review the decision. While this request was under consideration, Mr. Musso received a letter from the parents of a disabled girl participating in Special Olympics, complaining that Mr. Thomas had engaged in inappropriate and harassing behavior toward them daughter and that they and other persons participating in Special Olympics’ events feared his behavior.

In a letter dated January 7, 1994, Special Olympics International informed Mr. Thomas that it supported the Missouri Chapter’s decision, stating that, in addition to having the right to exclude him, Special Olympics Missouri was prudent in doing so. For more than two years, Mr. Thomas did nothing further to contest Special Olympics’ decision not to allow him to continue being involved in its activities, and he does not allege in this lawsuit that the decision to terminate his involvement in 1993 was tortious or unwarranted. In September 1996, however, Mr. Thomas sent Special Olympics a letter requesting that he be reinstated as a participating member of the organization. On November 26, 1996, Mr. Tim Cox, Chair of Special Olympics Missouri’s Board of Directors, denied this request on the basis that it was aware of the reasons that Mr. Musso and his staff had barred Mr. Thomas from participating in Special Olympics activities and it stood by that decision:

Your case, as all cases of eligibility, are the responsibility of the staff. Mr. Musso and his staff have kept the Board aware of the particulars of your situation. The MSO Board fully supports the decisions of the staff.
As you are aware, Special Olympics International has also agreed with the response of our staff.
Therefore, we stand by the decision that you are no longer eligible for Special Olympics.

It is this November 26,1996 letter denying reinstatement that Mr. Thomas alleges was motivated by a desire to injure him. On December 16, 1998, Mr. Thomas filed a lawsuit against Special Olympics for damages, claiming it intentionally inflicted emotional distress upon him by deciding not to reinstate him in its program. In the alternative, Mr. Thomas sought damages for prima face tort based on the same conduct. Following discovery, Special Olympics moved for summary judgment based on facts stated in an affidavit provided by Mr. Mark Musso, then President of Special Olympics Missouri; based on copies of internal correspondence of the Special Olympics organization and correspondence between it and Mr. Thomas; and based on Mr. Thomas’ answers to certain of Special Olympics’ interrogatories. After considering this evidence and Mr. Thomas’ opposing affidavit and argument, in which he asserted that Special Olympics knew its actions would cause him emotional distress but took those actions anyway, the trial court sustained Special Olympics’ motion for summary judgment on both counts. This appeal followed.

II. STANDARD OF REVIEW

Because our review of a grant of summary judgment is de novo, we apply the same criteria as did the trial court in order to determine whether the motion should have been granted. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). In doing so, we give no deference to the trial court’s ruling. Id.

To be entitled to summary judgment under Rule 74.04(c), a defending party need not controvert each element of the non-movant’s claim. Instead, the movant may negate the non-movant’s claim in one of three ways:

by showing (1) facts that negate any one of the claimant’s element[’]s facts, (2) that the non-movant, 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. (emphasis in original).

Once this burden has been met, the non-movant’s “only recourse is to show — by affidavit, depositions, answers to interrogatories, or admissions on file — that one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed.” Id. (emphasis in original). Thus, the non-movant cannot rest on his or her pleadings to survive summary judgment once the movant had made a prima facie case. Id.

Further, in reviewing the record on appeal, ITT instructs that the record is viewed “in the light most favorable to the non-movant” [which] means that the mov-ant bears the burden of establishing a right to judgment as a matter of law on the record as submitted, and:

Similarly, the rule that the non-movant is “given the benefit of all reasonable inferences” means that if the movant requires an inference to establish his right to judgment as a matter of law, and the evidence reasonably supports any inference other than (or in addition to) the movant’s inference, a genuine dispute exists and the movant’s prima facie showing fails.

Id. at 382. Finally, ITT explains that:

if there is no contradiction and the mov-ant has shown a right to judgment as a matter of law, the non-movant must create a genuine dispute by supplementing the record with competent materials that establish a plausible, but contradictory, version of at least one of the mov-ant’s essential facts.

Id.

III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Mr. Thomas claims that the court erred in granting summary judgment in favor of Special Olympics on his claim of intentional infliction of emotional distress because the facts alleged in his Petition, as supported by his affidavit offered in opposition to Special Olympics’ motion, establish a prima facie case for intentional infliction of emotional distress. We disagree.

The theory of intentional infliction of emotional distress has been developed through the courts in order to permit recovery in cases in which defendant has committed “extreme and outrageous conduct” causing “severe emotional distress that results in bodily harm.” Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. banc 1997). Not just any wrongful conduct is a sufficient predicate for the tort. Rather, the conduct “must have been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. And, importantly here, it is an essential element of the tort that “[t]he conduct must be ‘intended only to cause extreme emotional distress to the victim.’ ” Id. (emphasis added) (quoting, KG. v. R.T.R., 918 S.W.2d 795, 799 (Mo. banc 1996)). Accord, Sansonetti v. City of St. Joseph, 976 S.W.2d 572, 580 (Mo.App. W.D.1998). The tort thus has been held to have the following elements:

(1) the defendant must act intentionally or recklessly; (2) the defendant’s conduct must be extreme or outrageous; and (3) the conduct must be the cause (4) of extreme emotional distress. Boes v. Deschu, 768 S.W.2d 205, 207 (Mo.App.1989).

Hyatt v. Trans World Airlines, Inc., 943 S.W.2d 292, 297 (Mo.App. E.D.1997).

Special Olympics’ motion for summary judgment and supporting papers noted that Mr. Thomas had not even alleged in his Petition that the sole purpose of its conduct was to cause him emotional distress, much less that the distress was extreme or the conduct that caused it was outrageous in character or extreme in degree. Rather, he alleged only that, “the defendant knew that the plaintiff placed great value on his participation and membership in the defendant organization,” and, therefore, that “the actions of the defendant were intended to inflict emotional distress on plaintiff and they did inflict emotional distress on plaintiff to the extent that the plaintiff suffered medically significant physical ailment ...”

Special Olympics argued in its motion that these types of allegations are not sufficient to support a claim for intentional infliction of emotional distress, as they do not assert that its conduct was outrageous or that its sole purpose was to cause Mr. Thomas extreme emotional distress. Further, Special Olympics noted, the discovery conducted by the parties demonstrated as a matter of law that it denied Mr. Thomas reinstatement for reasons other than a desire to cause him extreme emotional distress. In support, it attached an affidavit of Mr. Mark Musso, then President of Special Olympics Missouri, Inc.

As noted above, Mr. Musso was personally involved in the decision not to allow Mr. Thomas to continue in Special Olympics in 1993, and the November 1996 letter stating that Special Olympics Missouri would not reinstate Mr. Thomas noted that the organization had made its decision in consultation with Mr. Musso and his staff. Mr. Musso stated in his affidavit that it was based on both his personal knowledge and on Special Olympics’ business records. He swore that the decision not to reinstate Mr. Thomas was made based on the organization’s belief that his continued participation would be disruptive of Special Olympics programs and would threaten the welfare of other participants, as follows:

6. Based upon the information received, Defendant honestly believed that Plaintiffs behavior and conduct was disruptive to the programs and purposes of Special Olympics and that the welfare of the Special Olympics athletes, coaches, volunteers and family members and protection of them from the same required that Plaintiff be permanently excluded from further participation in Special Olympics Events sponsored by Defendant and its local affiliates.
Defendant’s sole motivation for permanently excluding Plaintiff from participating in Special Olympics Events sponsored by Defendant and its affiliates was to prevent disruption to its programs and events and to protect participants, coaches, volunteers and families from the same. Defendant, in precluding Plaintiffs participation in such Special Olympics Events, did not intend or desire to cause Plaintiff any emotional distress or injury whatsoever.

Copies of the correspondence and memo-randa on which Mr. Musso said he and the others relied in making their decision were attached to the affidavit.

Special Olympics further supported its motion with a copy of Mr. Thomas’ answers to interrogatories that had asked him to identify the basis on which he alleged that Special Olympics’ intent in denying reinstatement was to cause him harm. His interrogatory answers said that he relied on the November 26, 1996 letter denying reinstatement, and further that since everyone knew he attached a great deal of significance to his membership in the Special Olympics, and would be severely emotionally upset by being excluded from it, they must have intended to harm him when they excluded him.

“Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion.” ITT Commercial Fin. Corp., 854 S.W.2d at 376. Because the facts set forth in Special Olympics’ affidavit and other documents negated the sole intent element necessary to support Mr. Thomas’ claim of intentional infliction of emotional distress, Special Olympics’ motion made a prima facie showing that it was entitled to summary judgment with respect to Mr. Thomas’ allegations of intentional infliction of emotional distress. Id. Once Special Olympics made a prima facie case, Mr. Thomas could not simply rely on his pleadings. To the contrary, his “only recourse,” id. at 381, was to come forward with facts, not conclusions, showing that Special Olympics’ conduct was so extreme and outrageous as to come within the bounds of the tort of intentional affliction of emotional distress, and as a part of this proof to show that the sole intent of Special Olympics in engaging in this conduct was to cause extreme emotional distress to Mr. Thomas. Id.; Gibson, 952 S.W.2d at 249.

Mr. Thomas failed to meet this burden. He asserted in a countervailing affidavit that many of the allegations and complaints made about him were untrue or exaggerated and that Special Olympics should have known this and did know how important his involvement in its programs was to him and knew it would cause him distress were he denied reinstatement. He did not deny Mr. Musso’s averment, however, that the basis of Special Olympics’ denial had been the many complaints it had received, or that it had indeed received such complaints, and that such complaints had been the basis of Mr. Thomas being banned from prior Special Olympics programs and had been the basis of the 1993 decision to exclude him from further participation in Special Olympics Missouri. Mr. Thomas further did not aver that the sole reason he was denied reinstatement was a desire to injure him, nor did he deny that the desire to avoid a repetition of these complaints and a desire to avoid the risk of harassment by Mr. Thomas was at least one of the reasons why Special Oym-pics denied him reinstatement. Rather, as he had in his Petition and interrogatory answers, Mr. Thomas claimed only that Special Olympics knew that its conduct would cause him emotional distress and that, as it undertook the conduct anyway, and as one is held to anticipate the reasonable and probable consequences of one’s actions, Special Olympics therefore should be found to have intentionally caused him emotional distress.

We disagree that this allegation was sufficient to meet Mr. Thomas’ burden of proof; for even if it is true, it does not negate Special Olympics’ proof that a desire to cause harm to Mr. Thomas was not the sole motivation for its conduct. The uncontradicted evidence indicated that there was a business purpose to Special Olympics’ decision also. Where a desire to cause severe emotional harm is not the sole motivation for the conduct alleged, then under Gibson, 952 S.W.2d at 249, and similar cases, suit cannot be brought for intentional infliction of emotional distress, even though Special Olympics might have known that its decision would cause Mr. Thomas distress. Otherwise, no group could ever turn persons down for membership, or exclude them for bad behavior, if the group was aware that this would make the persons so excluded unhappy, without being liable for the tort of intentional infliction of emotional distress. This is not the law. In order to recover under this theory, one must allege not just that the actor knew that emotional distress would result from his or her acts, but that this was the sole motivation for the actor’s conduct. Id. Only in this way can the tort be kept within reasonable bounds.

Mr. Thomas also alleges that, even were it true that Mr. Musso’s affidavit and the attached documents made a prima fa-cie case for summary judgment when considered together with the other evidence submitted, the affidavit and attached documents must be disregarded because Mr. Musso failed to state' in his affidavit that he had direct and personal knowledge of the facts contained in the documents, and failed to delineate whether his statements were based on his own knowledge or on the records Again, we disagree, and find that the trial court properly considered Mr. Musso’s affidavit. Mr. Musso did not state in his affidavit that only some of his averments were based on personal knowledge and the rest were based on information and belief after a review of the records, as Mr. Thomas appears to suggest.

The affidavit states that Mr. Musso “is the President of [Special Olympics Missouri] and that this affidavit is based upon his personal knowledge and based upon the records of [Special Olympics Missouri] kept in the regular course of business” (emphasis added). As previously noted, the action which formed the basis for the suit was Special Olympics’ refusal to reinstate Mr. Thomas in November 1996. Mr. Musso was President of Special Olympics Missouri when that decision was made. He had personal knowledge of the basis of that decision, and his affidavit makes clear that he and others made the decision after reviewing Special Olympics’ records as to Mr. Thomas’ prior involvement. Mr. Musso was in fact personally involved in that decision, and was personally involved in and aware of the reasons why Mr. Thomas was asked not to continue to participate in 1993, as shown by his affidavit and by the fact that he was copied on or a recipient of many of the relevant letters.

Equally importantly, however, Mr. Mus-so did not need to have personal knowledge of each of the facts stated in the letters in Special Olympics’ files in order to rely on them in his affidavit, for he was not claiming that they were true. He was averring that he personally knew why Special Olympics made its decision not to reinstate Mr. Thomas, and that the decision was based on Special Olympics’ concerns resulting from its review of the letters and other documents attached to the affidavit. He then personally averred as to his and the others’ motivation in deciding against reinstatement. These were proper subjects for his affidavit, were based on his personal knowledge, and were properly considered by the court below in deciding whether to grant Special Olympics’ motion for summary judgment.

For these reasons, we concur with the trial court that the uncontroverted evidence showed that it was not Special Olympics’ sole intent to cause Mr. Thomas extreme emotional distress by not allowing him to be reinstated into its programs. The evidence established, rather, that Special Olympics’ actions were driven at least partially by its desire to protect employees and other participants. As an organization whose purpose is to provide a broader range of activities and opportunities to mentally retarded individuals, it was reasonable that it take steps to ensure that access to and benefits of its services could be enjoyed without harassment. Mr. Thomas failed to contravene Special Olympics’ showing that this was at least a partial motivation for its actions. For these reasons, the trial court properly granted summary judgment to Special Olympics on Mr. Thomas’ claim of intentional infliction of emotional distress.

IV PRIMA FACIE TORT

Mr. Thomas also asserts a claim of prima facie tort against Special Olympics based on the same conduct which he alleged allowed him to assert that Special Olympics committed the tort of intentional infliction of emotional distress against him. A claim of prima facie tort requires proof of: (1) an intentional lawful act by the defendant, (2) defendant’s intent to injure the plaintiff, (3) injury to the plaintiff, and (4) an absence of, or insufficient justification for defendant’s act. Woolsey v. Bank of Versailles, 951 S.W.2d 662, 668 (Mo. App. W.D.1997). In addition, as we have recognized in prior cases, the nature of this tort is sufficiently ambiguous and open-ended that a plaintiff should not be permitted to sue under it for conduct which is encompassed within an existing, nominate tort. Id. And, as the Eastern District of this Court explained in Kiphart v. Community Federal Sav. & Loan Ass’n, 729 S.W.2d 510 (Mo.App. E.D.1987), “[t]he availability of a nominate tort does not mean that the plaintiff may be successful and actually recover damages under that theory, but means that the prima facie tort doctrine cannot be utilized when such a tort is available.” Id. at 517-18. In other words, this doctrine cannot be used to avoid the inability to prove one element of a nominate tort that is otherwise applicable under the facts.

For example, in Woolsey, plaintiffs sued under .two theories: wrongful foreclosure and prima facie tort. The conduct which they alleged supported their wrongful foreclosure claim was substantially identical to the conduct they alleged supported their prima facie tort claim. Plaintiffs lost on their theory of wrongful foreclosure, and the court did not permit them to proceed on their claim of prima facie tort. On appeal, plaintiffs asserted that they should have been permitted to submit their prima facie tort claim. Woolsey disagreed, holding that, where, as there, the same facts underlay both theories, the doctrine of pri-ma facie tort could not be invoked, for it “is not a duplicative remedy for claims that can be sounded in other traditionally recognized tort theories.... As such, the prima facie tort doctrine cannot be utilized when a recognized tort is otherwise available.” 951 S.W.2d at 668.

We have also recognized that in order for a claim in prima facie tort to lie, plaintiff must offer proof “of an ‘actual intention’ to injure, not merely an intent to do the act which may result in the claimed injury.” Boatmen’s Bank of Butler v. Berwald, 752 S.W.2d 829, 833 (Mo.App. W.D.1988). “This court has also held that a valid business reason for actions taken by a defendant, provides justification sufficient to defeat a prima facie tort claim.” Id. Merely claiming that defendant must have been aware that its conduct would cause harm is not sufficient to meet the requirement that plaintiff prove an actual intent to injure, that is, actual malice. See Dowd v. General Motors Acceptance Corp., 685 S.W.2d 868, 874 (Mo.App. W.D.1984).

Here, Mr. Thomas has asserted the same conduct by Special Olympics supports both his prima facie tort claim and his intentional infliction of emotional distress claim. “[SJince the conduct [Mr. Thomas] assert[s] established the elements of prima facie tort is identical to that supporting [intentional infliction of emotional distress], [Mr. Thomas] could not utilize the theory of prima facie tort and the trial court did not err in rejecting [his] claim.” Woolsey, 951 S.W.2d at 668-69. Moreover, he has not alleged actual malice, spite or ill-will on the part of Special Olympics, but only that it knew that its actions would cause him distress and must have intended the natural and probable consequences of its acts. He has thus failed to assert the requisite bad motive necessary to prove prima facie tort.

For all of these reasons, we affirm the trial court’s judgment granting summary judgment to Special Olympics on plaintiffs suit for intentional infliction of emotional distress and prima facie tort.

Presiding Judge HAROLD L.' LOWENSTEIN and Judge THOMAS H. NEWTON, concur.

      . Special Olympics Missouri, Inc. is a not-for-profit organization that sponsors and organizes sporting events in the Olympic tradition for mentally retarded children and adults.


source: Caselaw Access Project

license: Public Domain

text:
    Janice L. WRIGHT, Billy L. Wright, Jr., Tammy K. Stevens, Terri A. Wright, and Toni Inda Kneedler, Appellants/Cross-Respondents, v. CAMERON COMMUNITY HOSPITAL, Bela Csaki, P.C., Bela Csaki, M.D., and Earl R. Schmidt, D.O., Respondents/Cross-Appellants.
    Nos. WD 57624, WD 57648 and WD 57660.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.
    Edward Dougherty, Kansas City, for appellant.
    Lloyd Bandy, Jr., Thomas W. Wagstaff, Kansas City, for respondent.
    Before PAUL M. SPINDEN, Chief Judge, VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Janice Wright, Billy L. Wright, Jr., Tammy K. Stevens, Terri A. Wright and Toni Inda Kneedler sued Cameron Community Hospital; Bela Csaki, a thoracic and cardiovascular surgeon; Csaki’s corporation, Bela Csaki, P.C.; and Earl R. Schmidt, a general surgeon, for the wrongful death of Billy L. Wright, Sr. A jury returned a verdict in favor of the hospital and physicians, and the circuit court entered judgment on the jury’s verdict. The Wright family appeals, and the hospital and physicians cross-appeal. We affirm. Rule 84.16(b).


author: ROBERT G. ULRICH, Judge.

text:
    Brenda Kathleen CRAWFORD, Respondent, v. Larry Curtis CRAWFORD, Appellant.
    No. WD 57668.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.

      Thomas R. Summers, St. Joseph, for appellant.
    Tracy A. McFadin, Gallatin, for respondent.
    Before EDWIN H. SMITH, P.J., ULRICH, J. and ELLIS, J.
   ROBERT G. ULRICH, Judge.

Larry C. Crawford (Husband) appeals the judgment of the trial court dissolving his marriage to Brenda K. Crawford (Wife). He claims that the trial court erred in ordering him to pay Wife $97,770.67 as partial distribution of the marital property because the award does not result in equal division of the marital property and because the award was based on the following trial court errors: (1) inclusion as marital property of one-half of the value of numerous certificates of deposit titled in the name of Husband and his children which were not marital property; (2) failure to include as marital debt a farm operation loan in the amount of $10,015; (3) declaring the amount of debt owed to Cory Crawford was $50,000 rather than the correct sum of $60,000; and (4) awarding Husband the sum of $9,885 as the value of crops growing on his land. Because the record reflects that the marital property remains undivided and undis-posed, the trial court has not exhausted its jurisdiction and a final, appealable judgment does not exist. Hence, the appeal is dismissed and the case is remanded to the trial court to divide the remaining property.

FACTS

Husband and Wife were married July 15, 1976. Husband had been previously married and had a child, Jon, from the prior marriage. There were two children born of the marriage, Michael, born May 21, 1978, and Cory, born September 15, 1979. All children were ■ emancipated at the time of trial.

During the marriage, Husband was primarily a farmer. He supplemented his income at times throughout the marriage by driving a truck part-time for Prime Tanning and working part-time at the ASCS Office. Wife was mainly a farmwife and mother. She helped run the farm while Husband was employed part-time. She started work for a factory in Grant City, Missouri after the separation.

Husband and Wife separated on October 17, 1998. Thereafter, Wife filed a petition for dissolution of marriage on November 24, 1998, asking the trial court to dissolve her marriage to Husband and divide the marital property and debt.

The trial court issued its judgment and decree of dissolution of marriage on July 29, 1999. Husband filed a motion to have the judgment amended, or in the alternative, a motion for a new trial, on August 23, 1999. The trial court issued an amended judgment and decree of dissolution of marriage on August 25, 1999. In its amended judgment, the trial court dissolved the parties’ marriage, and classified and divided the marital property and debt. The judgment awarded Husband virtually all the personal property of the marriage and ordered Husband to make a $97,670.67 property equalization payment to Wife as partial division of the marital property. The judgment, however, failed to distribute, divide or dispose of the real property of the marriage.

Although neither party raised the issue of finality before the trial court or before this court on appeal, the finality of a judgment is a jurisdictional prerequisite and it is the duty of this court sua sponte to determine its jurisdiction. Spauldin v. Spauldin, 945 S.W.2d 665, 668 (Mo.App. W.D.1997) (quoting Spence v. Spence, 922 S.W.2d 442 (Mo.App. S.D.1996)). If a judgment is not final this court must then dismiss the appeal. Id.

The trial court’s judgment is not final because it did not distribute all of the property identified as marital property as required by § 452.330, RSMo Cum.Supp. 1999. The trial court, therefore, has not exhausted its jurisdiction. The trial court must make a distribution of marital property that is definite and capable of enforcement. Hird v. Hird, 872 S.W.2d 605, 606 (Mo.App. W.D.1994). Unless and until all marital property has been distributed, the trial court’s judgment is not final. Id. (citing Ravenscroft v. Ravenscroft, 585 S.W.2d 270, 274 (Mo.App. W.D.1979); Anspach v. Anspach, 557 S.W.2d 3, 6 (Mo.App.1977)).

In this case, the property not distributed consists of:

1. One-half interest in property titled to Larry C. Crawford and William Corey Crawford, as joint tenants and not as tenants in common, located in the Pattonsburg, Missouri, area ...
[legal description omitted].
That said property has a total fair market value of $106,000.00 ($500.00 per acre), subject to mortgage with Bank Midwest in the amount of $54,177.00, leaving $25,911.50 in marital equity subject to division by this Court.
2. 240 acres located in Gentry County, Missouri, including the marital residence
[legal description omitted].
That said real estate has a total fair market value of $149,000.00, subject to mortgage of $67,567.25 with Bank Midwest, and a loan from Corey Crawford of $50,000.00, leaving $31,432.75 in equity subject to division by this Court.

The judgment specifically classified this property as marital, however, the judgment does not divide or distribute it. Consequently, the lack of this final judgment leaves this court with no alternative other than to dismiss this appeal. Spauldin, 945 S.W.2d at 668 (citing Zimmer v. Zimmer, 826 S.W.2d 904, 905 (Mo.App. S.D.1992); Wagner v. Wagner, 823 S.W.2d 523, 526 (Mo.App. W.D.1992)).

The effect of this dismissal is' to recognize the jurisdiction of the trial court to enter a new judgment covering the entire case. Spauldin, 945 S.W.2d at 668 (citing Meltzer v. Meltzer, 775 S.W.2d 120, 120-21 (Mo. banc 1989)). Either party will then have the right to appeal the trial court’s new decree. Spauldin, 945 S.W.2d at 668 (citing Spence, 922 S.W.2d at 443).

The appeal is dismissed, and the ease is remanded to the trial court to distribute the real property.

EDWIN H. SMITH, P.J., and ELLIS, J., concur.

      . Because there is the potential for an appeal after remand, the trial court may wish to consider an issue raised by a party in this court. In its decree, the trial court did not classify or distribute as marital debt a farm operation loan in the amount of $10,015.00, which was acquired subsequent to the marriage and prior to a decree of legal separation or dissolution. In cases where it is unclear from the record whether property should be and was treated as separate or marital property for purposes of property division, the designation as such turns on witness credibility, which is an issue for the trial court. Wright v. Wright, 1 S.W.3d 52, 61 (Mo.App. W.D.1999). Thus, the only recourse for the appellate court is to reverse and remand for the appropriate findings by the trial court. Id. Likewise, given the inseparable connection between the allocation of marital debt and the fair and equitable division of marital property, this principle would apply to the trial court’s failure to designate debt as either marital or non-marital. Id. In this case, the record is unclear as to whether the trial court classified the farm operation loan as nonmari-tal or inadvertently overlooked it in dividing the marital property and debt. Depending on what testimony was believed by the trial court, the debts might be found by it to be either, which may affect whether the court’s property division was fair and equitable.


text:
    STATE of Missouri, Appellant, v. Thomas S. GINN, Respondent.
    No. WD 57803.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.

      Pamela K. Vestal, Asst. Pros. Atty., St. Joseph, for appellant.
    Timothy D. Ernst, St. Joseph, for respondent.
    Before Presiding Judge LOWENSTEIN, Judge LAURA DENVIR STITH and Judge NEWTON.
   LAURA DENVIR STITH, Judge.

On August 26, 1999, a jury convicted Defendant Respondent, Thomas S. Ginn, of delivery of a controlled substance in violation of Section 195.211 RSMo 1994. Subsequently, the court below granted Mr. Ginn’s Motion for New Trial on the ground that Mr. Ginn was deprived of his right to a fair trial when the State was allowed, over Mr. Ginn’s objection, to cross-examine defense witness John Dudley concerning Mr. Dudley’s knowledge of a drug-dealing partnership between Mr. Dudley’s nephew and Mr. Ginn. The State appeals, claiming that the trial court abused its discretion in granting Mr. Ginn a new trial in two respects. First, the State claims, Mr. Ginn waived his objection to this line of cross-examination when his counsel participated in a reformulation of the question to only inquire as to “partners” rather than “drug-dealing partners” during a bench conference. Alternatively, the State asserts, even had Mr. Ginn preserved the error for purposes of his motion for new trial, the court abused its discretion because the question alleged to be prejudicial was properly relevant to show bias on the part of the witness, Mr. Dudley.

We find that the trial court acted within its discretion in concluding that the State’s question to Mr. Dudley caused Mr. Ginn sufficient prejudice to warrant a new trial. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The evidence adduced at trial was as follows:

On June 24, 1997, Mr. Mark Dydell, a confidential informant for the Buchanan County Drug Strike Force, arranged to purchase an “eight ball” of crack cocaine from Mr. John Dudley for $125.00. Mr. Dydell met Mr. Dudley on that day at the corner of 15th and Charles Streets in Saint Joseph, Missouri. Prior to this meeting, Mr. Dydell met with members of the Buchanan County Drug Strike Force. They searched his person and his vehicle and fitted him with a concealed recording device by which they monitored the subsequent transaction between Mr. Dydell and Mr. Dudley.

Upon meeting at the corner of 15th and Charles Streets as agreed, Mr. Dydell and Mr. Dudley proceeded in Mr. Dydell’s vehicle to the corner of 19th and Charles Streets and parked the car. After haggling for a short time over the price of the crack cocaine, Mr. Dydell gave Mr. Dudley $125.00 in cash. Mr. Dudley then exited the vehicle, and, according to Mr. Dydell’s later testimony at trial, met with Defendant Thomas Ginn, who had just approached on a bicycle. Mr. Dydell said he saw Mr. Dudley exchange the money with Mr. Ginn for a small amount of crack cocaine, and Mr. Dudley then returned to the car and gave the crack cocaine to Mr. Dydell. Mr. Ginn was later arrested and charged with delivery of a controlled substance.

Mr. Dudley’s testimony at trial contradicted that of Mr. Dydell. Mr. Dudley testified on behalf of Mr. Ginn that although he did arrange to sell crack cocaine to Mr. Dydell, and met with Mr. Dydell on the corner of 19th and Charles Streets, he did not obtain the crack cocaine from Mr. Ginn, nor did he even see Mr. Ginn on that day. He testified that, upon meeting Mr. Dydell at the corner of 19th and Charles Streets, he went “around the corner” from Mr. Dydell’s vehicle, purchased the crack cocaine from an unnamed source “not Mr. Ginn” and returned to the vehicle to deliver the cocaine to Mr. Dydell.

On cross-examination of Mr. Dudley, the prosecutor asked Mr. Dudley whether he knew that his nephew, Roy Dudley, sold drugs. Mr. Dudley answered that he did have such knowledge. The prosecutor then proceeded to ask Mr. Dudley whether he knew that Defendant and his nephew were “partners in drug-dealing.” Before the witness could answer counsel for Mr. Ginn objected and the attorneys conferred with the court outside the hearing of the jury.

During the bench conference, counsel for Mr. Ginn objected to the State’s inquiry on the ground that the question involved collateral issues of uncharged prior misconduct on the part of Mr. Ginn, and that the prejudicial effect of the evidence outweighed its probative value. The court noted that the reason the prosecutor was asking the question was “for the purpose of showing bias on behalf of a witness that you have called ... because of your client’s relationship with his nephew,” thus indicating that the court believed that it was appropriate to ask a question such as this since it went to the witness’ bias. Counsel for Mr. Ginn then suggested that the prosecutor “could have just done that by just saying that he was friends or partners with Mr. Roy Dudley without bringing in this issue of them being partners for drug deals ... You can talk about partners or friends without talking about participating ...”. At that point, the prosecutor said she would rephrase the question “just saying partners” and the court said “All right. I think that’s the better course, in all candor.” Defense counsel was silent following this ruling.

The proceedings then returned to open court. The prosecutor inquired of Mr. Dudley whether he had knowledge that during the “time frame” of June 24, 1997, Mr. Ginn and Roy Dudley “were partners.” Mr. Dudley testified that he did, indeed, have such knowledge. Counsel for Mr. Ginn made no further objection to the question in this form, nor did he request that the Court give a limiting instruction to the jury, or ask that the Court instruct the jury to disregard the prior unanswered question about a drug-dealing partnership, as the question was originally posited to Mr. Dudley.

Mr. Ginn was subsequently convicted by the jury of delivery of a controlled substance in violation of Section 195.211. After trial, Mr. Ginn timely filed a Motion for Judgment of Acquittal, or in the Alternative, for a New Trial. Paragraph Six of that motion alleged that the trial court erred in allowing the prosecution to cross-examine Mr. Dudley, over Mr. Ginn’s objection, regarding Mr. Ginn’s association with Roy Dudley, in that the Court allowed the jury to be exposed to evidence of Mr. Ginn’s prior uncharged acts of criminal misconduct, and further that the prejudicial effect of the evidence far outweighed any probative value it might have had. On October 8, 1999, the trial court entered an order granting Mr. Ginn a new trial, stating:

[I]n permitting the state to cross-examine, over the defendant’s objection, the defendant’s witness John Dudley, regarding Dudley’s knowledge of the partnership between the defendant and Dudley’s nephew, whom he believed to be a drug dealer, the defendant’s right to a fair trial was prejudiced and ... good cause exists for the Court’s grant of a new trial in accordance with Missouri Supreme" Court Rule 29.11.

The State appeals the trial court’s grant of a new trial to Mr. Ginn.

II. STANDARD OF REVIEW

As this Court noted in Duckett v. Troester, 996 S.W.2d 641 (Mo.App. W.D. 1999):

“A trial court has great discretion in determining whether to grant a new trial.” McGraw v. Andes, 978 S.W.2d 794, 801 (Mo.App.1998). Its decision is presumed to be correct and will be reversed on appeal only for an abuse of discretion. Id. An abuse of discretion occurs where the trial court’s ruling is so arbitrary and unreasonable as to shock one’s sense of justice and indicate a lack of careful consideration. Id. Tt cannot be said that the trial court abused its discretion where reasonable persons could differ over the propriety of its ruling.’ Id. However, the granting of a motion for a new trial can be an abuse of discretion where it is based on findings that are not substantially supported by the record. VonSande v. VonSande, 858 S.W.2d 233, 237 (Mo.App.1993).

“ ‘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.’ Balke v. Central Mo. Elec. Coop., 966 S.W.2d 15, 25 (Mo.App.1997). The complaining party must show that some trial error or misconduct of the prevailing party was responsible for prejudicing the jury. Kansas City v. Keene Corp., 855 S.W.2d 360, 372 (Mo. banc 1993); Norris v. Barnes, 957 S.W.2d 524, 528 (Mo.App.1997).” Duckett, 996 S.W.2d at 646-47.

III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN GRANTING DEFENDANT’S MOTION FOR NEW TRIAL

The State argues that the trial court erred in granting a new trial on the basis of prejudice stemming from the State’s cross-examination of Mr. Dudley concerning his knowledge of a drug-dealing partnership between his nephew and Defendant Ginn because Mr. Ginn “waived” his objection to the question when his counsel participated in reformulating the question during the bench conference on the objection. The State also asserts that even if Mr. Ginn did not “waive” this allegation of error, the trial court abused its discretion in granting a new trial because the question about a drug partnership was sufficiently relevant to showing bias on the part of Mr. Dudley to overcome its prejudicial impact. We reject both arguments.

The relevant exchange between counsel and the witness, John Dudley, was as follows:

Q. Do you know a Roy Dudley?
A. Roy Dudley is my nephew.
Q. And do you know that Roy Dudley runs around with Thomas Ginn?
A. Yes, I am aware of that.
Q. Okay, and you also know that Roy Dudley deals drugs.
A. Yes, I know that also.
Q. And you also know that Roy and Thomas Ginn, the defendant, were partners in drug-dealing?
MR. ERNST: Judge, I’m going to object. May we approach?

After counsel approached the bench, the following exchange occurred between the court and counsel:

MR. ERNST: Judge, this involves uncharged bad acts and is a totally collateral issue which has no relevance to these charges and it’s prejudicial without having any probative value.... Judge, we’re getting into a totally collateral issue by opening up someone else’s drug-dealing activities. Whether or not there is any proof that they were partners or working together is starting to get into uncharged bad acts and it’s just trying to paint him as a bad person who associates with someone else who has testified to drug-dealing.
THE COURT: She’s asking for the purpose of showing bias on behalf of a witness that you have called by the reason that she is suggesting that he hasn’t been testifying truthfully because of your client’s relationship with his nephew ...
MR. ERNST: She could have just done that by just saying that he was friends or partners with Mr. Roy Dudley without bringing in this issue of them being partners for drug deals.... You can talk about partners or friends without talking about participating
MS. VESTAL: Your Honor, I’ll rephrase it just saying partners.
THE COURT: All right. I think that’s the better course, in all candor. We really don’t need a problem at this stage, so I think this is probably a good course. Thank you.

As is evident, Mr. Ginn’s counsel made a clear objection at the time the offending question was initially asked. When the trial court indicated he would overrule the objection to any questioning about the witness’ relationship with defendant’s nephew, because their relationship was relevant to show bias, defense counsel did not withdraw his objection as the State now suggests, but rather simply suggested that there were other ways the issue could have been raised without causing prejudice by referring to unrelated drug transactions. Counsel did not suggest that a subsequent rephrasing of the question by the prosecutor in a less objectionable manner would alleviate the prejudice already caused by the question previously asked.

It was at this point that the prosecutor said she would rephrase the question and the court said the prosecutor could do so. While defense counsel’s silence at this point and failure to object to the rephrased question constituted acquiescence in the second question, counsel never agreed that the rephrasing negated any prejudice caused by the initial question and so never affirmatively waived any error in asking the initial question.

Thus, the issue becomes whether the State is right in arguing that the trial court abused its discretion in granting a new trial because the question asked of Mr. Dudley was sufficiently relevant to demonstrating his bias that it was not unduly prejudicial when considered in light of the purpose for asking it. We do not agree with the State that the trial court abused its discretion in holding that, in the context of the trial, the prejudicial effect of the question outweighed its probative value. It is well-settled that a trial court has discretionary power to grant a new trial because of an erroneous trial ruling, whether or not an objection was timely made. As Steward v. Goetz, 945 S.W.2d 520 (Mo.App.1997), set out the rule:

“On appeal when a party claims error because the trial court denied that party a new trial, the party ordinarily must have made a proper and timely objection to the claimed error to preserve it for review; but, when, as here, a party claims error because the trial court granted the opposing party a new trial, the opposing party need not have made an objection to the error upon which the trial court granted a new trial. Farley v. Johnny Londoff Chevrolet, Inc., 673 S.W.2d 800, 804 (Mo.App.1984). A trial court has the right, in the proper exercise of its discretionary power, to grant a new trial on account of any erroneous ruling, whether an objection has been made nor not. Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482, 485 (1932). See Rules 78.01 and 78.08.”

Id. at 527-28. Rule 78.01 states in relevant part that “The court may grant a new trial of any issue upon good cause shown.” Rule 78.08 states that “[pjlain errors affecting substantial rights may be considered at a hearing on motion for a new trial, in the discretion of the court, though not raised in the motion or defectively raised, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” See also Hill v. Hyde, 14 S.W.3d 294 (Mo.App. W.D.2000) (finding no error in the trial court’s failure to treat the appellant’s objection “upon which the trial court ultimately based its grant of a new trial” as having been waived, despite the fact that appellant failed to timely raise the objection during trial). Accord, Blackman v. Botsch, 281 S.W.2d 532, 535 (Mo.App.1955).

Evidence otherwise relevant and admissible should be excluded if the evidence “brings into a case matters which cause prejudice wholly disproportionate to the value and usefulness of the offered evidence.” State v. Pollard, 719 S.W.2d 38, 39 (Mo.App.1986). Although unanswered questions are not usually deemed so prejudicial as to require a new trial, they can cause this degree of prejudice. See State v. McClanahan, 954 S.W.2d 476, 478 (Mo.App. W.D.1997). In State v. Dunn, 577 S.W.2d 649, 651 (Mo. banc 1979), for example, the court held that asking a question that contains detailed information about a prior crime may require a new trial because in some such cases “it is not the answer which prejudices the defendant, it is the question that carries the poison .... the jury must, as reasonable persons, conclude that the question is based upon information known to the questioner.” Id. at 650. Furthei’, it is well-settled that evidence of specific instances of conduct relating to other crimes, wrongs, or acts is generally inadmissible to prove character or as the basis of an inference that an accused acted in conformity with his prior misconduct on the occasion in question. See State v. Wright, 582 S.W.2d 275, 277 (Mo. banc 1979). Thus, the trial court could, in its discretion, have determined that the prosecutor’s initial question, making reference to a “drug-dealing” partnership between Defendant Ginn and Roy Dudley, was sufficiently prejudicial, whether considered alone or in conjunction with the second question, to undermine the fundamental fairness of the trial, thereby warranting the grant of a new trial, because it went beyond impeaching the witness’ credibility by showing that Defendant was in business with the witness’ nephew, and instead brought prior instances of Mr. Ginn’s criminal conduct before the jury for the purpose of showing his propensity to commit the crime in question.

For these reasons, the judgment of the trial court granting a new trial is affirmed.

Presiding Judge HAROLD L. LOWENSTEIN and Judge THOMAS H. NEWTON, concur.


text:
    James SHELBY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 57852.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.
    Tara L. Jensen, Asst. Public Defender, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PAUL M. SPINDEN, Chief Judge, EDWIN H. SMITH, Judge, and VICTOR C. HOWARD, Judge.
   ORDER

James Shelby appeals the circuit court’s judgment denying his Rule 24.035 motion to set aside his guilty plea to robbery in the first degree and to armed criminal action. We affirm. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Gregory ROBERTSON, Appellant.
    No. WD 57920.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.
    Matthew J. O’Connor, Asst. Public Defender, Kansas City, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Linda Lemke, Asst. Atty. Gen., Jefferson City, for respondent.
    Before PAUL M. SPINDEN, Chief Judge, EDWIN H. SMITH, Judge, and VICTOR C.HOWARD, Judge.
   ORDER

Gregory Robertson appeals the circuit court’s judgment convicting him of three counts of sexual misconduct in the second degree, two counts of sexual misconduct in the first degree, one count of statutory sodomy in the first degree and one count of statutory rape in the first degree. We affirm. Rule 30.25(b).


author: PER CURIAM:

text:
    In the Interest of C.R.Y., Appellant. C.Y. (Father), Y.L. (Mother), Plaintiffs, v. Juvenile Officer, Respondent.
    No. WD 57968.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.
    Martina L. Peterson, Kansas City, for appellant.
    Donald Lee Cain, Kansas City, for respondent.
    Before BRECKENRIDGE, P.J., ULRICH, J. and HOWARD, J.
   ORDER

PER CURIAM:

C.R.Y. appeals the adjudication of the juvenile court finding that she committed forcible sodomy, section 566.060, RSMo Cum.Supp.1998. She claims that the evidence was insufficient to establish that she acted together with other persons with a common purpose to commit forcible sodomy, that she herself committed forcible sodomy, or that forcible compulsion was used in the commission of a crime. The judgment of the juvenile court is affirmed. Rule 84.16(b).


text:
    Garry ADAMS, et al., Appellants, v. Dora SCHRIRO, et al., Respondent.
    No. WD 58263.
    Missouri Court of Appeals, Western District.
    Submitted Sept. 8, 2000.
    Decided Nov. 7, 2000.
    Appellants acting pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., J. Eric Durr, Asst. Atty. Gen., Jefferson City, for Respondents.
    Before HOLLIGER, P.J., BRECKENRIDGE and SMART, JJ.
   PER CURIAM:

Appellants are four inmates incarcerated at the Jefferson City Correctional Center. On November 24,1999, they filed an action in the Cole County Circuit Court against Dora Schriro, Director of the Missouri Department of Corrections, and other officials of the Missouri Department of Corrections. In their suit, the plaintiffs claim that the officials in question are mishandling the receipts of the prison canteen in violation of § 217.195 RSMo Supp.1999.

In January, 2000, the defendants filed a motion to dismiss, contending that plaintiffs’ action should be dismissed because defendants are protected by the doctrine of official immunity and the public duty doctrine. Defendants further contended that the plaintiffs lacked standing to assert certain constitutional claims because plaintiffs did not have a property interest in the statutorily created canteen fund. Defendants also contended that plaintiffs failed to exhaust their administrative remedies before filing suit as required by law. Attached to the motion were affidavits related to the administrative procedures for inmate grievances. The affidavits also set forth copies of grievances filed by Plaintiff Garry Adams and noted that no grievance had been filed by the other plaintiffs. The affiants further demonstrated that Plaintiff Garry Adams had not pursued the grievance procedures to the conclusion of the administrative process.

Plaintiff Garry Adams filed a response to defendants’ motion. Adams complained in his brief response that the motion to dismiss did not address the issues of the case, and promised that audits to be completed by the State Auditor would show that plaintiffs’ allegations are correct. The other inmates did not respond. On January 31, 2000, the trial court entered its judgment granting the defendants’ motion to dismiss. The trial court ruled: 1) that the defendants were protected from suit by the official immunity and public duty doctrines; 2) that the claims of RICO violations and claims of constitutional violations fail because plaintiffs have no property interest at stake in the controversy; and 3) plaintiffs were required to exhaust all of their administrative remedies before filing suit and had failed to do so. The court ruled that, therefore, their claim should be dismissed.

We first consider the jurisdictional issue of whether the plaintiffs failed to exhaust their administrative remedies. Section 506.384, RSMo Supp.1999, provides that inmates having grievances must exhaust “all administrative remedies” prior to filing a legal action. “The rule requiring exhaustion of administrative remedies is one of subject matter jurisdiction.” Green v. City of St. Louis, 870 S.W.2d 794, 796 (Mo. banc 1994).

The motion of the defendants, which was supported by affidavits, demonstrated that there are four tiers of the inmate grievance procedure. The affidavits also asserted that plaintiffs Krallman and Hall failed to even take the first step to process an administrative grievance. The affidavits further asserted that Plaintiff Adams did commence the administrative process, but did not complete it. The plaintiffs provided no rebuttal, by affidavit or otherwise, with regard to any of the issues raised in defendants’ motion to dismiss.

Under § 506.384.2, a court may exercise jurisdiction over a claim without first requiring the exhaustion of administrative remedies only if the claim, on its face, is frivolous, is malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. Although there is doubt as to the merit of plaintiffs’ claims, the trial court did not find that all of plaintiffs’ petition was on its face frivolous or malicious. It is also not clear that all of the claims in the petition fail to state a claim upon which relief may be granted. Also, not all the claims are limited to seeking monetary relief from defendants who are immune from such relief (because the petition also sought injunctive relief). Accordingly, it would appear that the trial court was required to dismiss the petition for failure to exhaust administrative remedies, rather than to proceed to address the legal merits of the petition.

Conclusion

Because the trial court lacked jurisdiction to address the merits of the petition, and because the court properly found that plaintiffs had failed to exhaust their administrative remedies, the case is remanded to the circuit court for the court to amend the dismissal so as to remove rulings on the merits of the claims and to recite that the case is dismissed for failure to exhaust administrative remedies.

      . Section 217.195 states as follows:
      With the approval of his division director, the chief administrative officer of any correctional center operated by the division may establish and operate a canteen or commissary for the use and benefit of the offenders.
      Each correctional center shall keep revenues received from the canteen or commissary established and operated by the correctional center in a separate account. The acquisition cost of goods sold and other expenses shall be paid from this account. A minimum amount of money necessary to meet cash flow needs and current operating expenses may be kept in this account. The remaining funds from sales of each commissary or canteen shall be deposited monlhly in a special fund to be known as the “Inmate Canteen Fund” which is hereby created and shall be expended by the appropriate division, for the benefit of the offenders in the improvement of recreational, religious, or educational services. The provisions of section 33.080, RSMo, to the contrary notwithstanding, the money in the inmate canteen fund shall be retained for the purposes specified in this section and shall not revert or be transferred to general revenue. The department shall keep accurate records of the source of money deposited in the inmate canteen fund and shall allocate appropriations from the fund to the appropriate correctional center.

      . Nevertheless, it appears that there are many deficiencies to the petition of plaintiffs, as the trial court noted, in that many of their claims for monetary damages and attorney’s fees appear to be without legal basis.


author: PAUL M. SPINDEN, Chief Judge.

text:
    Randy D. ELLIOTT, Appellant, v. STATE of Missouri, Respondent.
    No. WD 58206.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.

      Andrew A. Schroeder, Asst. Public Defender, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
   PAUL M. SPINDEN, Chief Judge.

Randy D. Elliot was convicted of one count of attempted forcible rape, one count of forcible sodomy, one count of first degree assault, one count of first degree robbery, and one count of first degree burglary. He appeals the circuit court’s judgment denying his Rule 29.15 motion for postconviction relief without an eviden-tiary hearing. He contends that his attorney was ineffective for not impeaching the victim with a prior inconsistent statement which would have provided him a complete defense to the charge of forcible sodomy. The state concedes that we should remand this case to the circuit court for an eviden-tiary hearing. We agree and reverse the circuit court’s judgment and remand to the circuit court to conduct an evidentiary hearing.

To be entitled to an evidentiary hearing on his postconviction motion, Elliott’s motion had to satisfy three requirements: (1) allege facts — not conclusions— which, if true, warranted relief; (2) allege facts not refuted by the record; and (3) establish that the matters complained of prejudiced Elliott. State v. Blankenship, 830 S.W.2d 1, 16 (Mo. banc 1992).

In considering Elliott’s direct appeal of his convictions, this court reported:

The state accused Elliott of attacking a 71-year-old woman in her Kansas City house on December 11, 1996. After the woman let Elliott into her house to use her telephone, Elliott threw her to the floor, removed her clothes, put one of his fingers into her vagina, and beat her with his fists.

State v. Elliott, 987 S.W.2d 418, 419 (Mo.App.1999). We vacated the robbery conviction and sentence but affirmed the remaining convictions and sentences, including the conviction for forcible sodomy.

In his postconviction motion, Elliott alleged that his attorney should have impeached the victim with a prior inconsistent statement that Elliott did not penetrate her vagina with his finger. At trial, the victim testified that Elliott’s finger had penetrated her “slightly.” According to Elliott’s motion, the victim testified in her deposition that Elliott had only touched, rather than penetrated, her vagina with his finger. Elliott’s motion alleged that, although the victim testified in her deposition that Elliott’s finger “barely” penetrated her vagina, she then said, “I guess you’d say touching.” Elliott’s motion also alleged that this would have provided him with a complete defense to the charge of forcible sodomy. The state concedes that the present record does not refute this allegation. Because Elliott has pleaded sufficient facts, which if taken as true, may merit relief, we remand this case to the circuit court for an evidentiary hearing on this claim.

EDWIN H. SMITH, Judge and HOWARD, Judge, concur.

      . "A person commits the crime of forcible sodomy if he has deviate sexual intercourse with another person by the use of forcible compulsion.” Section 566.060.1, RSMo 1994. " ‘Deviate sexual intercourse' means any act involving the genitals of one person and the mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person[.]” Section 566.010(1), RSMo 1994.


text:
    Michael F. JARMAN, Appellant, v. Carl and Vera GRIGGS, Respondents.
    No. WD 58070.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.
    Gwen Adele Edwards, Kansas City, for appellant.
    Richard Paul Beard, Sedalia, for respondent.
   PAUL M. SPINDEN, Chief Judge.

Michael F. Jarman operated a cocktail lounge in Excelsior Springs. They leased the premises for the lounge from Carl and Vera Griggs. When the lounge’s roof started leaking in early 1995, Jarman asked the Griggs to repair it. In February 1996, the Griggs reroofed the building. Jarman, however, sued the Griggs alleging that his business lost profits because of the leaking roof. The circuit court found that, although it believed that Jarman did lose some business because of the leaking roof, Jarman did not meet his burden of establishing the amount of damages that he suffered. Jarman appeals, and we affirm the circuit court’s judgment.

Jarman asserts that the circuit court’s judgment that he did not meet his burden of proof as to the amount of damages was against the weight of the evidence. In reviewing this decision, we must affirm the circuit court’s judgment in a court-tried case unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Moreover, we must act cautiously, acting only if our beliefs are firm, in reversing a judgment on the ground that it is against the weight of the evidence. Id. We accept as true the evidence and inferences therefrom which are favorable to the circuit court’s judgment, and we disregard all contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989).

The evidence established that the roof started leaking in Jarman’s business in early 1995 and leaked through the ceiling over the fireplace, hallway, pool tables and dance floor. Jarman claims that he lost business because of these leaks.

As to the issue of lost profits, Jarman presented Bruce Cully, a certified public accountant, as an expert witness. Cully

1994
February $10,318.65
May $ 9,075.46
December $14,163.32

The court found that Cully’s reports were “inconsistent on a monthly and yearly basis.” The court also found that it believed Vera Griggs’ testimony that Jar-man had told her that his bartender was stealing from him during that same period. The circuit court concluded:

This court finds that there was a problem with a leaking roof in [Jar-man’s] business. It further finds that a business could reasonably expect to lose some customers with water coming in on the dance floor, pool tables, and in the hallways. The difficulty lies in connecting an actual amount of lost sales with the water problem when all conditions were not the same. For example, plaintiff spent different amounts on advertising, which would affect sales.

testified that, although businesses typically experience an increase in sales after their first year, Jarman’s business sales declined. Cully calculated that Jarman’s sales should have increased nine percent in 1995 and six percent in 1996. Based on those percentages, Cully concluded that Jarman’s business lost profits of $5557 in 1995 and $13,837 in 1996. Cully acknowledged that he could not say that the leaking roof was the only problem that caused Jarman’s lost profits. Cully also did not identify in which months Jarman’s business began losing sales. He said that he was not concerned with Jarman’s monthly financial statements and did not use them because too many fluctuations beyond sales could have affected their figures.

The circuit court, however, did its own review of the income statements and found that Jarman’s sales for 1994, 1995 and 1996 did not establish a pattern of lost sales. The circuit court outlined this sales comparison chart:

1995 1996
$10,612.53 $10,025.24
$11,176.75 $ 9,864.44
$10,254.88 $13,286.61
[AJlthough this [c]ourt believes Jar-man lost some business due to the leaking roof, whether that amount is $200.00 or $2,000.00 is pure conjecture. This court cannot, under Missouri law, engage in speculation in arriving at a damage amount. [Jarman] has the burden of proving the amount of damages, and although he made every effort to do so by his own testimony and that of an expert witness, the amount of damage, if any, as a result of the leaking roof, remains uncertain.

We agree with the circuit court.

Lost profits are recoverable “ ‘when they are made reasonably certain by proof of actual facts which present data for a rational estimate of such profits.’ ” Jack L. Baker Companies, Inc. v. Pasley Manufacturing and Distributing Company, 413 S.W.2d 268, 270 (Mo.1967) (citation omitted). “Recovery is prohibited ‘when there is uncertainty or speculation as to whether the loss of profits was the result of the wrong[.]’ ” Thoroughbred Ford, Inc. v. Ford Motor Company, 908 S.W.2d 719, 735 (Mo.App.1995) (citation omitted).

Although the circuit court agreed that Jarman’s business may have suffered lost profits because of the leaking roof, Jarman did not present data for a rational estimate of those profits. Jarman asserts that, because he presented business records for the time that his business operated, the circuit court had enough evidence to decipher his damages with a sufficient degree of certainty. The circuit court differed, saying that the records did not provide a basis for making a rational estimate.

Jarman’s expert provided the circuit court with calculations indicating that Jar-man’s business should have increased its sales in 1995 and 1996, but the expert acknowledged that he could not say that lost profits resulted directly from the leaking roof or identify in which months Jar-man’s business began losing sales. The expert admitted that a number of other business decisions could have caused Jar-man’s lost profits. The circuit court believed that Jarman’s bartender was stealing from the business during this same period and that this affected profits. Hence, the circuit court’s conclusion that Jarman did not provide a sufficient basis for its making a “rational estimate” of lost profits was not against the weight of the evidence. Had the circuit court have calculated its rational estimate of lost profits on this evidence, it would have been engaging in pure speculation. We, therefore, affirm the circuit court’s judgment

EDWARD H. SMITH, and HOWARD, JJ., concur.

      . In making its judgment, the circuit court also took judicial notice that riverboat gambling was legalized in Clay County during 1994 and 1995 and that local casinos were in direct competition for Jarman’s business. Jarman complains that the circuit court erred in taking judicial notice of these facts because the effects of casinos on businesses such as Jarman’s would not be of common knowledge and, therefore, would not qualify as appropriate facts to be judicially noticed. We need not decide, however, whether the circuit court erred in taking judicial notice of these facts because, even without these facts, sufficient evidence supported the circuit court’s decision.

      . From our review of the exhibit, the circuit court should have indicated an amount of $9998.04 for December 1995.


text:
    Deborah L. PEACE, Appellant, v. William P. PEACE, Respondent.
    No. WD 58045.
    Missouri Court of Appeals, Western District.
    Nov. 7, 2000.

      Douglas Mark Greenwald, Kansas City, for appellant.
    Mark E. Allen, Liberty, for respondent.

      Before Presiding Judge LOWENSTEIN, Judge LAURA DENVIR STITH and Judge NEWTON.
   LAURA DENVIR STITH, Judge.

Deborah Peace appeals the circuit court’s judgment terminating William Peace’s child support obligation for then-daughter, Nicole Peace. She argues that the circuit court erred in determining that statements she made in a pleading constituted binding judicial admissions that Nicole was emancipated, and that the court below should have considered the facts the parties presented at trial in determining emancipation. We agree and reverse and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

Petitioner Deborah Peace (Mother) and Respondent William Peace (Father) were married on July 7, 1973, and dissolved their marriage on June 9,1998. The court granted Mother primary physical custody of the parties’ two minor children, Nicole C. Peace, born March 23, 1981, and Garrett W. Peace, born November 14, 1984. The court ordered Father to pay $825.00 in monthly child support to Mother for the care and support of the children.

In the spring of 1998, shortly before the end of her junior year, the parties’ eldest child, Nicole, then age 17, dropped out of high school. That fall, Nicole began classes to obtain her General Equivalency Diploma (GED). In April 1999, one month after Nicole’s 18th birthday, Father filed a Motion to Modify the Decree of Dissolution. In his motion, he stated that Nicole was 18, had dropped out of school in her junior year, and was not enrolled in any school. He contended that she was self-supporting and that her mother had relinquished her from parental control. Hence, Father claimed that under Section 452.340 Nicole was emancipated and his child support obligation toward her should be terminated.

When "Mother’s counsel filed an unverified response to Father’s motion to modify on June 3, 1999, counsel knew that Nicole had left high school and that she turned 18 on March 23, 1999, but counsel apparently was unaware that Nicole was taking GED classes and was planning to continue her education at cosmetology school in the fall. As a result, in his responsive brief Mother’s counsel admitted the following allegations made in Father’s motion to modify: that Nicole became emancipated on her 18th birthday on March 23, 1999; that she was self-supporting and her mother had relinquished parental control; that she was not physically or mentally incapacitated from supporting herself; that she was not enrolled in or attending a secondary school and had not been in such a school during the previous twelve month period; and that she was not enrolled in or attending an institution of vocational or higher education and had not been in such a school during the previous twelve-month period.

Mother’s counsel was later told by Mother that Nicole had begun taking GED classes in the fall of 1998 and expected to received her GED in the summer of 1999, shortly after she would have received her high school diploma had she not dropped out of school. Mother also told counsel that she continued to provide Nicole with room, board and financial support. Additionally, Mother noted that Nicole’ planned to attend cosmetology school. Nicole in fact received her GED in July 1999, and thereafter enrolled in a post-secondary education program in cosmetology. Mother’s counsel notified Father’s attorney by telephone and letter that Mother believed that Nicole was not emancipated for these reasons, and Father later conducted discovery on these issues. Mother did not withdraw or amend her original response to the motion, in which she admitted Nicole’s emancipation, however.

At the modification hearing held on September 14, 1999, Mother tried to present the evidence just noted that supported a finding that Nicole was not emancipated. Father objected to admission of this evidence on the basis that Mother’s admissions in her responsive brief amounted to a judicial admission that Nicole was emancipated and precluded Mother from contesting that issue at the hearing. The court took the issue under advisement and allowed Mother to present evidence that Nicole was not emancipated. The court also allowed Father to present evidence that Nicole was, in fact, emancipated. Father testified that Nicole became emancipated on her 18th birthday because she was out of school, self-supporting and living with her boyfriend at Mother’s house, and that Mother had relinquished Nicole from parental control. On cross-examination by Mother’s counsel, Father stated although he was previously unaware that Nicole had taken GED classes, that she had passed the GED examination, or that she was enrolled full-time in a cosmetology vocational school, he did believe that she was not under parental control in her Mother’s home because he believed she lived there with her boyfriend and was self-supporting.

Shortly after the hearing concluded Mother filed a motion to withdraw or amend her original responsive brief to delete her admissions of Nicole’s emancipation. On December 9, 1999, the court ruled that Mother’s motion to withdraw or amend her brief, filed later on the day of the hearing, “came too late.” It held that Mother’s admissions in her brief, although contrary to testimony at the hearing, were judicial admissions on the issue of Nicole’s emancipation. It therefore did not consider the testimony presented at the hearing and determined, based on the admissions, that Nicole became emancipated on March 23, 1999, and terminated Father’s child support obligation for Nicole. Mother now appeals.

II. STANDARD OF REVIEW

We will affirm the trial court’s decision on appeal 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.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We “should set aside a judgment on the ground that it is against the weight of the evidence only ‘with caution and with a firm belief that the decree or judgment is wrong.’ ” Harris by Harris v. Harris, 803 S.W.2d 167, 169 (Mo.App. S.D.1991), quoting, Jun v. Murphy, 763 S.W.2d 290, 294 (Mo.App. E.D.1988). We additionally afford the trial court deference concerning its determinations of credibility, and we view the evidence in the light most favorable to the trial court’s decision. Shiflett v. Shiflett, 954 S.W.2d 489, 492 (Mo.App. W.D.1997). The trial court’s judgment “must be affirmed under any reasonable theory supported by the evidence and should be set aside only upon a firm belief that the trial court’s judgment was incorrect.” Id.; Guier v. Guier, 918 S.W.2d 940, 946 (Mo.App. W.D.1996).

III. JUDICIAL ADMISSIONS

In her first point on appeal, Mother asserts that the trial court erred in holding her responsive brief was a binding judicial admission in that: (1) no Missouri case holds that statements made in a trial court brief constitute binding judicial admissions; and (2) Father knew that emancipation was an issue and conducted discovery on that issue, so he would not be prejudiced if the court permitted modification of Mother’s response and allowed the issue of emancipation to be tried on the merits. We agree that the court below erred in treating the statements in the responsive brief as binding judicial admissions.

A judicial admission “waives or dispenses with the production of evidence and concedes for the purpose of the litigation that a certain proposition is true.” In re Marriage of Maupin, 829 S.W.2d 125, 127 (Mo.App. S.D.1992). Father cites case law holding that where an answer admits allegations in a petition then those admissions constitute binding judicial admissions. Maupin, 829 S.W.2d at 127. Here, however, Mother did not file a formal answer to Father’s motion to modify. In fact, none of our rules or statutes require the filing of a formal answer or other responsive pleading to a motion to modify child support. See Sec. 452.310 RSMo Cum.Supp.1999; James v. James, 853 S.W.2d 425, 432 (Mo.App. S.D.1993); II Mo. Family Law Section 25.4 (Mo. Bar 5th ed.1997, 1999). Where a motion to modify is filed, the opposing party normally does file a response, of course, and Mother did so here, but that response was not labeled “Answer.” It was labeled “Brief in Response to Respondent’s Motion To Modify Decree of Dissolution As Regards Child Support.” While, as Father notes, that responsive brief did follow the form usually followed by an answer in admitting and denying facts stated in the motion to modify, Father cites us to no cases holding that this makes the facts “admitted” binding judicial admissions, as opposed to evidentiary admissions.

Our own research has revealed cases holding that admissions made “during the progress of trial by a party’s attorney for the purpose of being used as a substitute for evidence produced in the usual way are judicial admissions and, as such, are conclusive upon the party making them.” Wehrli v. Wabash R. Co., 315 S.W.2d 765, 774 (Mo.1958). Also, facts stated in appellate briefs may be the foundation for judicial admissions. Ortmeyer v. Bruemmer, 680 S.W.2d 384, 397 n. 5 (Mo.App. W.D.1984). No Missouri case appears to have treated briefs or suggestions filed in the trial court in the same manner, however. And, the cases state that admissions made in the course of other types of trial preparation activities, such as depositions or interrogatory answers, or in superceded pleadings, can be used as evidentiary admissions, but they do not constitute binding judicial admissions. See Nolte v. Wittmaier, 977 S.W.2d 52, 60 (Mo.App. E.D.1998) (finding interrogatory answers did not constitute judicial admissions); Kansas City v. Keene Corp., 855 S.W.2d 360, 373 (Mo. banc 1993) (finding facts stated in a brief in a prior appellate proceeding in a case were not binding judicial admissions, but admissions against interest); Bray v. Bray, 629 S.W.2d 658, 660 (Mo.App. E.D.1982) (finding statements in abandoned pleadings were admissible as admissions against interest and for impeachment).

In determining whether the admissions made in the responsive pleading at issue here should be considered in the nature of evidentiary admissions or judicial admissions, we are also guided by the fact that the issue before us involves the welfare of a child in that it concerns her right to support from her father. It is well-settled that in child custody cases, “technical rules of pleading may not impede the court’s determination of the welfare of children.” Pinkston v. Ellington, 845 S.W.2d 627, 630 (Mo.App. E.D.1992). In Buckman v. Buckman, 857 S.W.2d 313, 319 (Mo.App. E.D.1993), the court applied this principle to the child support modification case before it and held that technical rules of pleadings should not interfere with making a modification decision on the merits for, “[wjhile we recognize that a party’s proof must conform to his pleadings, technical rules as to pleadings should not prevent a decision on the merits where the welfare of minor children is at stake.” Id. at 319. Cf. Cummins v. Cummins, 873 S.W.2d 280, 282 (Mo.App. W.D.1994); Ashton v. Ashton, 772 S.W.2d 730, 732 (Mo.App. E.D.1989) (child custody cases).

The fact that this case involves the welfare of a child, and that in such cases we may chose not to technically apply the pleading rules, affects our resolution of the issue before us in two ways. First, since no Missouri case has yet applied the harsh doctrine of judicial admissions to informal pleadings such as the brief before us, we hesitate to so extend it here. Second, Rule 55.33(a) provides that a trial court may grant parties leave to amend pleadings when justice so requires, and that leave shall be freely given. One of the key issues a trial court examines when determining whether to grant leave to amend is whether the non-moving party will be prejudiced by the amendment. Kanefield v. SP Distributing Co., 25 S.W.3d 492, 498 (Mo.App. E.D.2000); Wheelehan v. Dueker, 996 S.W.2d at 780, 782 (Mo.App. E.D.1999).

Of course, Mother’s counsel did not formally move to amend his brief at or before the hearing, but he did ask the court to allow him to introduce evidence on this issue, and then formally moved to amend shortly after the hearing. Had Mother made such a formal motion to amend prior to the hearing, the record below shows that no prejudice would have resulted from the amendment in that Father’s counsel was well aware that Nicole’s emancipation was a potential issue at the hearing, and he admitted that he had come prepared to try that issue on the merits if Mother sought and was granted permission to amend her pleadings at the hearing. While Father may have hoped that his argument about judicial admissions would win the case, he did not rely on it. Indeed, the court told the parties to present their evidence while it took the issue of judicial admissions under advisement. Accordingly, Father presented the wage records for Nicole that he had previously subpoenaed, and brought out numerous facts at trial which he alleges supported a finding that Nicole is self-supporting and no longer under parental control, and therefore is emancipated regardless whether she completed her GED and is now in cosmetology school.

Given these facts, and in light of the principle that we may chose not to apply technical pleading requirements and instead reach the merits where the best interests of a child is at stake, we hold that the court erred in treating Mother’s responsive brief as a judicial admission. The court should have considered the evidence submitted and determined the issue of emancipation on the merits. For these reasons, we reverse and remand this case to the trial court for further proceedings on the issue whether the evidence previously submitted, and such additional evidence, if any, as the court deems proper to allow the parties to present on remand, shows that Nicole is emancipated.

Presiding Judge LOWENSTEIN and Judge NEWTON, concur.

      . Section 452.340 states in pertinent part:
      3. Unless the circumstances of the child manifestly dictate otherwise and the court specifically so provides, the obligation of a parent to make child support payments shall terminate when the child:
      Becomes self-supporting, provided that the custodial parent has relinquished the child from parental control by express or implied consent;
      Reaches age eighteen, unless the provisions of subsection 4 or 5 of this section apply; ...
      5. If when a child reaches age eighteen, the child is enrolled in and attending a secondary school program of instruction, the parental support obligation shall continue, if the child continues to attend and progresses toward completion of said program, until the child completes such program or reaches age twenty-one, whichever first occurs. If the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school or completion of a graduation equivalence degree program and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including the summer semester, at an institution of vocational or higher education and achieves grades sufficient to reenroll at such institution, the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-two, whichever first occurs ...
      Sec. 452.340 RSMo Cum.Supp.1999.