text:
    Vincent KARPIERZ, Appellant, v. Chief Richard D. EASLEY, et al., Respondent.
    No. WD 58364.
    Missouri Court of Appeals, Western District.
    Nov. 14, 2000.

      James McMullin, Esq., Kansas City, for appellant.
    Dale H. Close, Esq., Kansas City, for respondent.
    Before LOWENSTEIN, P.J., LAURA DENVIR STITH and NEWTON, JJ.
   HAROLD L. LOWENSTEIN, Judge.

This appeal concerns Missouri’s Criminal Activity Forfeiture Act (CAFA), set out in chapter 513, RSMo, 1994. Appellant Vincent Karpierz 1) appeals the trial court’s ruling that the respondents, including Richard D. Easley, Chief of Police, and the Kansas City, Missouri Board of Police Commissioners (hereafter referred to simply as the Board) were not required to follow CAFA when police seized money in conjunction with Kapierz’s drug arrest and transferred it to federal authorities without having first sought and obtained approval from Clay County’s prosecuting attorney and a circuit judge; and 2) further contends that if the authorities confiscated his property under CAFA, he is entitled to pursue an action of assumpsit for unjust enrichment for money had and received to recover the money from the Chief and the Board.

Factual and Procedural History

On April 13, 1998, the Kansas City police were granted a search warrant for Karpierz’s residence in Clay County based in part on possible illegal drug activity as uncovered by the surveillance of Officer Mark Merrill and in part on marijuana residue recovered from Karpierz’s trash. Four days later, Kansas City police officers, including Billie Koetting, who is a detective with the department as well as a deputized FBI agent and U.S. Marshal, engaged in surveillance of Karpierz’s residence in anticipation of the arrival of the warrant.

While the officers awaited the warrant, Karpierz left his residence in his van. An officer radioed Merrill and asked him to stop the van so he could talk with Kar-pierz. Merrill tailed Karpierz and then stopped him for changing lanes without signaling. Merrill arrested Karpierz for that traffic violation and for having no drivers license on his person and then searched Karpierz and his vehicle. Among other things, Merrill recovered $1,029 and ordered the van towed. At the direction of Sergeant Wellington, Koetting then ar.rived and took possession of the money from the police officers.

While Koetting was with Merrill, the search warrant arrived at Karpierz’s residence. Wellington and Detective Gary Gibson were already searching the upstairs portion of the house when Koetting returned. While Koetting was searching the basement, Wellington and Gibson found marijuana and $33,000 upstairs.

During the execution of the search warrant but after the marijuana and money were found, Steven Espeer, who is a detective with the Asset Forfeiture Squad of the Kansas City Police Department, contacted the federal Drug Enforcement Agency (DEA) to see whether it was interested in the investigation. Two DEA agents arrived at the residence and took possession of the marijuana and the money recovered from both the van and the residence. Es-peer testified that he decided to contact the DEA because Clay County had never filed a successful forfeiture proceeding pursuant to CAFA during the three years he worked there, and he preferred federal forfeiture over “allowing a drug dealer to get his money back.” Pursuant to 21 U.S.C. § 881, the $34,029 was forfeited to the U.S. government. A portion of that money, $21,347.55, was returned to the Kansas City, Missouri, Police Department upon application to the U.S. Department of Justice. Karpierz was convicted of drug charges in state court. He then instituted this civil action alleging violation of CAFA and praying for return of the money from the State of Missouri.

The trial court held that both the $1,029 found in Karpierz’s van and the $33,000 found in Karpierz’s house pursuant to the search warrant were merely “recovered and inventoried” by the Kansas City police, and that the “decision to seize the money was made by the [DEA], a federal authority.” Therefore, the trial court found that CAFA did not apply to this case and held that Karpierz was not entitled to a return of the seized money from the defendants.

Standard of Review

This court must affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This court may only set aside the trial court’s decision if firmly convinced that the judgment is wrong. Cremer v. Hollymatic Corp., 12 S.W.3d 363, 366 (Mo.App.2000)(further citations omitted).

I. Under these facts, did CAFA apply, and if so was it violated?

In his first point, Karpierz argues that the Kansas City police “seized” his currency and did not follow CAFA procedures.

The CAFA legislation uses but does not define the term “seizure.” “Where a statute uses words which have a definite and well known meaning at common law it will be presumed that the terms are used in the sense in which they were understood at common law, and they will be so construed unless it clearly appears that it was not so intended.” PharmFlex, Inc. v. Division of Employment Sec., 964 S.W.2d 825, 830 (Mo.App.1997) (quoting State v. Duggar, 806 S.W.2d 407, 408 (Mo. banc 1991)).

The term “seizure” has an established, common-law meaning. As defined by the U.S. Supreme Court and adopted by Missouri courts, a “seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Bezayiff v. City of St. Louis, 963 S.W.2d 225, 232 (Mo.App.1997). According to the common-law definition, there is no question that the Kansas City police “seized” Karpierz’s money instead of merely “recovering” and “inventorying” it, as the trial court held. And pursuant to § 513.649, Detective Koetting’s participation as a member of the Kansas City police does not take this case outside of Missouri’s CAFA even though he was deputized both as an FBI agent and as a U.S. Marshal.

In the case of the money recovered from the vehicle, Officer Merrill of the Kansas City police department stopped and arrested Karpierz for traffic violations and pursuant to those violations searched his car and took possession of his money. Karpierz’s possessory interests in the currency were clearly divested at that point, not at the point when the money was transferred to federal agents. Bezayiff, 963 S.W.2d at 232.

In the case of the money recovered from Karpierz’s house, the record shows that although there was later federal participation in the execution of the search warrant, the investigation and seizure were conducted by the Kansas City police. The warrant by a Clay County circuit judge was issued pursuant to surveillance by the Kansas City police. Kansas City police officers awaited and executed the search warrant and found the money and marijuana. Moreover, the following portion of Detective Espeer’s testimony indicates that federal agents did not know about the investigation until after the money and marijuana were recovered—legally seized—by the Kansas City police, and in effect shows an intent by the police to avoid invocation of CAFA and its procedural guidelines:

Q. In this case, why did you send the case to the federal level for seizure rather than send it up here to the Clay County Prosecutor’s Office?
A. Unfortunately ... Clay County had never filed a successful forfeiture proceeding to that date. We’ve never had a judgment order for forfeiture proceedings against a state defendant as long as I’ve been there and still haven’t to date.
Q. How long has that been?
A. That’s been over three years that I’ve been on. So as opposed to allowing a drug dealer to get his money back, I decided to contact the federal side and see if they would accept it as a federal seizure. Q. Did you see that as your only option?
A. I saw it as my only option, yes, other than give the money back to the dope dealer.

The Board argues that because this is a case of first impression, the court can define here when a seizure has occurred for purposes of CAFA. But “[fjorfeiture statutes are ‘strictly construed against the state and every word, clause, sentence and provision of such statutes is presumed to have been intended by the legislature to have effect and be operative.’” State v. Sledd, 949 S.W.2d 643, 648-49 (Mo.App. 1997). Further, as discussed supra, the legislature gave no indication that a seizure should be defined by any different standard than as set forth by established case law, and this court declines to modify the definition.

As a matter of policy, establishing a different definition of a “seizure” under CAFA would make determining when property is seized, where it is seized, and by which entity it is seized extremely difficult. Moreover, any change of the common-law definition of seizure would muddy the effect of Missouri’s forfeiture laws. Changing the legal classification from “seizure” to “recovered and inventoried” seems to defy the normal progression of when law enforcement personnel first search a person’s place, seize the property, and then inventory the property. See, e.g., State v. Figgins, 839 S.W.2d 630, 640-41 (Mo.App.1992). Therefore, by seizing the property and subsequently transferring it to the DEA, the police violated both the letter and the spirit of CAFA.

Under these facts, this court concludes that the Kansas City police seized the money. This brings up the next issue: can a local police department then transfer the contraband to a federal agency with the legal result that the seized property is a federal seizure? Because the $34,029 was obtained as the result of a state seizure, § 513.647.1 of CAFA spells out the next step that our law mandates:

No state or local law enforcement agency may transfer any property seized by the state or local agency to any federal agency for forfeiture under federal law until the pi'osecuting attorney and the circuit judge of the county in which the property was seized first review the seizure and approve the transfer to a federal agency. The prosecuting attorney and the circuit judge shall not approve any transfer unless it reasonably appears the activity giving rise to the investigation or seizure involves more than one state or the nature of the investigation or seizure would be better pursued under federal forfeiture statutes. No transfer shall be made to a federal agency unless the violation would be a felony under Missouri law or federal law. (Emphasis added.)

“Since the law abhors a forfeiture, before a petition is sustained and forfeiture enforced both the letter and the spirit of the law authorizing the forfeiture must be complied with strictly.” State v. Hampton, 817 S.W.2d 470, 472 (Mo.App.1991). The police should have followed § 513.647.1 and allowed a Clay County circuit judge and the county prosecuting attorney to review the seizure and approve the transfer. CAFA, as presently written, does not allow a unilateral transfer by a Missouri police department to a federal agency once the police have seized the property. Any change in this interpretation must come from the legislature.

In sum, implication of the CAFA statute as to contraband taken by state law enforcement personnel is governed by the taking amounting to a seizure. This court rules that without a statutory definition, the common-law definition should apply. Under that definition, a seizure by the Kansas City Police Department occurred in this case. Under CAFA, the fact that an officer participating in the operation had dual authority with a federal agency in no way affected the operation of CAFA. Similarly, the later transfer by the Board to a U .S. agency could not undo the attaching of application of the CAFA statute to the property recovered by the seizure. Under CAFA, a circuit judge and the county prosecutor needed to approve the forfeiture” before any transfer to a federal agency became effective. The trial court’s judgment that the seizure of the money was made by federal authorities and that CAFA did not apply was an erroneous application of the law and is therefore reversed.

II. Where a violation of the requirements of CAFA have been established, does the person from whom the property was seized have a remedy against the police for return of the contraband?

In his second point, Karpierz argues that he is entitled to recover from the Board $34,029 for-money had and received. Because the trial court never reached this issue — having determined instead that CAFA had not been implicated and therefore not violated — the trial court never considered appellant’s theory of recovery: assumpsit for money had and received. As such, the case will be returned for a determination of whether Karpierz may recover under his pleaded theory. Although dicta, the court makes the following observations.

“An action for money had and received is an action sounding in assump-sit.” Jurgensmeyer v. Boone Hospital Center, 727 S.W.2d 441, 443 (Mo.App.1987). “This claim sounds in contract and waives all torts arising from the incident.” Palo v. Stangler, 943 S.W.2d 683, 685 (Mo.App.1997). A claim for money had and received is contractual by nature and thus not barred by sovereign immunity. Id.

In its brief, the Board argues that CAFA does not provide a private cause of action. The Board relies on Bradley v. Ray, 904 S.W.2d 302, 313 (Mo.App.1995) for the proposition that “[t]he creation of a private right of action by implication is not favored and the general trend under Missouri law is away from judicial inferences that a violation of a statute is personally actionable.” See also Johnson v. Kraft Gen. Foods, 885 S.W.2d 334 (Mo. banc 1994).

Karpierz did not, however, sue under CAFA for damages and does not allege that CAFA itself provides a private cause of action as the plaintiffs did in Bradley and Johnson. Instead Karpierz sued under the action for money had and received, and such action “has always been favored in the law, and the tendency is to broaden its scope.” Brandkamp v. Chapin, 473 S.W.2d 786, 788 (Mo.App.1971).

The trial court’s judgment is reversed and the case is remanded to determine whether an action for money had and received is appropriate under these facts and where CAFA was applicable to the forfeiture, but was not followed. No costs.

All Concur.

      .Very generally, this law subjects all property, including money, derived from or realized through criminal activity, to civil forfeiture. The law details who must be notified and who must give approval for a petition to forfeit property, as well as required notices and hearings to be afforded. Net proceeds are to be distributed pursuant to Article IX, Section 7, of the Constitution of Missouri.

      . All further statutory references are to the Revised Statutes of Missouri, 1994, unless otherwise indicated.

      . On appeal Karpierz does not contest the validity of the warrant or the search itself.

      . On appeal Karpierz does not contest the validity of the stop, his arrest or the search of his vehicle pursuant to his arrest.

      . Espeer's testimony is set forth more fully in Part I, infra.

      . Section 513.649 states: “Any property seized by state or local peace or reserve officers who are detached to, deputized or commissioned by or working in conjunction with the federal agency shall remain subject to [CAFA].” The court is aware of scholarly opinion that § 513.649 may be violative of the Supremacy Clause. See, e.g., Frans J. Von Kaenel, Missouri Ups the Ante in the Drug Forfeiture "Race to the Res”, 72 Wash. U. L.Q. 1469, 1484-86 (1994). Even if the constitutionality of CAFA had been ruled upon by the trial court, any questions as to the validity of state statutes are not proper before this court; the Supreme Court of Missouri has exclusive jurisdiction. Mo. Const. Art. 5, § 3.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Willie MACK, Appellant, v. STATE of Missouri, Respondent.
    No. WD 58378.
    Missouri Court of Appeals, Western District.
    Nov. 14, 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 Presiding Judge SMART, ELLIS, Judge and LAURA DENVIR STITH, Judge.
   ORDER

PER CURIAM:

Movant-Appellant Willie Mack was convicted of voluntary manslaughter under Section 565.023, and armed criminal action under Section 571.015. The trial court sentenced Mr. Mack to concurrent terms of 15 years for voluntary manslaughter and five years for armed criminal action. After this Court affirmed Mr. Mack’s conviction on direct appeal, Mr. Mack filed a Rule 29.15 motion for post-conviction relief alleging, among other errors, that his trial counsel was ineffective in failing to call the victim’s brother as a witness. Mr. Mack appeals the motion court’s denial of this motion without an evidentiary hearing. Finding no error in the trial court’s ruling, we affirm by this summary order pursuant to Rule 84.16(b), but have provided a memorandum to the parties explaining the reasons for our decision.

      . All statutory references are to RSMo 1994.


author: PER CURIAM.

text:
    F.E. RHODES, et al., Appellant, v. James H. ESTES, et al., Respondent.
    No. ED 77321.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 14, 2000.
    Walter S. Drusch, Jr., Cape Girardeau, MO, for Appellant.
    John L. Oliver, Jr., Cape Girardeau, MO, for Respondent.
    Before HOFF, P.J., SULLIVAN, J., and DRAPER, J.
   ORDER

PER CURIAM.

F.E. Rhodes and Edvira Rhodes appeal from the trial court’s judgment in favor of James H. Estes and Beverly Estes on a claim arising from a violation of a non-compete agreement following the sale of a convenience store.

We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial and competent evidence in the record and is not against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Justin T. MINX, Respondent, v. Delores A. MINX, Appellant.
    No. WD 57918.
    Missouri Court of Appeals, Western District.
    Nov. 14, 2000.
    Edward M. Berg, Columbia, for appellant.
    Matthew Francis Howard, Eldon, for respondent.
    Before PAUL M. SPINDEN, Chief Judge, PATRICIA A. BRECKENRIDGE, Judge, and THOMAS H. NEWTON, Judge.
   ORDER

In 1996, Delores and Justin Minx petitioned the circuit court to modify its judgment dissolving their marriage. Delores Minx appeals the circuit court’s judgment requiring her to pay retroactive child support. Because the circuit court did not abuse its discretion, we affirm the judgment. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. James WILLYARD, Appellant.
    No. ED 77014.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 14, 2000.
    Gwenda R. Robinson, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for respondent.
    Before ROBERT G. DOWD, P.J., MARY RHODES RUSSELL and RICHARD B. TEITELMAN, JJ.
   ORDER

PER CURIAM.

James Willyard (Defendant) appeals the judgment entered upon a jury verdict finding him guilty of one count of second degree murder, in violation of section 565.021 RSMo 1994, and one count of armed criminal action, in violation of section 571.015 RSMo 1994, for which he was sentenced to concurrent terms of thirty years. On appeal, Defendant claims the trial court (1) erred in limiting defense counsel’s cross-examination of the State’s eyewitness, (2) erred in allowing the State to question the venire panel as to whether anyone would be unable to judge the case fairly knowing that the Defendant, who is white, had accused three young black men of the murder for which he was on trial, and (3) committed plain error in failing to sua sponte modify the second degree murder instruction to include language that Defendant had not acted under sudden passion and in failing to sua sponte submit to the jury an instruction on the lesser included offense of voluntary manslaughter.

We have reviewed the briefs of the parties and the record on appeal. No error of law appears and an extended opinion would serve no jurisprudential purpose. We have, however, prepared an accompanying memorandum for the use of the parties only, setting forth the reasons for this order. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Richard THOMAS, Appellant.
    No. ED 77511.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 14, 2000.
    M. Shawn Asídnoste, Teresa L. Grant-ham, Springfield, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea L. Mazza, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, P.J., CRAHAN, J., and DRAPER, J.
   ORDER

PER CURIAM.

Richard Thomas (“Defendant”) appeals the judgment entered upon his conviction by a jury of assault in the first degree, section 565 .060 RSMo 1994, armed criminal action, section 571.015 RSMo 1994, and unlawful use of a weapon, section 571.030 RSMo 1994. Defendant was sentenced to concurrent prison terms of ten years and three years and fined $250.00, respectively.

We have reviewed the briefs of the parties and the record on appeal and find no error of law or abuse of discretion. An extended opinion would be of no prece-dential value. We have, however, provided the parties with a memorandum opinion, for their use only, explaining the reasons for our decision.

The judgment is affirmed pursuant to Rule 30.25(b).


text:
    James HILL, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 77514.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 14, 2000.
    Gwenda R. Robinson, Asst. Public Defender, St. Louis, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., PAUL J. SIMON and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

James Hill appeals from a judgment denying without an evidentiary hearing his motion for post-conviction relief filed under Rule 24.035. We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court’s judgment is not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . All rule references are to Mo.R.Crim.P. 2000, unless otherwise indicated.


text:
    Sandra K. WORLEY, Appellant, v. Steven M. WORLEY, Respondent.
    No. ED 77202.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 14, 2000.
    Irwin M. Roitman, St. Louis, for appellant.
    Richard J. Eisen, Timothy C. Sansone, Ziercher & Hocker, P.C., Clayton, for respondent.
    Before MOONEY, P.J. and SIMON and SULLIVAN, JJ.
   ORDER

PER CURIAM.

Sandra K Worley (Mother) appeals the judgment of the Circuit Court of St. Louis County denying her Motion to Relocate the residence of her minor child, Kevin Arthur Worley; (Kevin), and ordering Kevin’s return to his former school, because the proposed relocation of Kevin was not in the best interest of the child and the accompanying visitation schedule was unrealistic.

On appeal, Mother contends the trial court erred in entering a judgment which, in effect, conditionally suspended Steven M. Worley’s (Father) child support obligation and modified primary custody in the absence of a motion by Father to modify custody or support. Mother argues such a judgment without a Motion to Modify by Father, was not responsive to the issues raised by Section 452.377 RSMo 2000 Cumulative Supplement and not responsive to the pleadings.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion reciting detailed facts and restating principles of law would have no precedential value. We affirm the award pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Robert JONES, Appellant.
    No. ED 76968.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 14, 2000.
    Craig A. Johnston, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before ROBERT G. DOWD, Jr., P.J., and MARY RHODES RUSSELL and TEITELMAN, JJ.
   ORDER

PER CURIAM.

Robert Jones was charged with the class D felony of unlawful use of a weapon, Section 571.030.1(1), RSMo Cum.Supp. 1999. Following a jury trial, the jury found Jones guilty, and the trial court sentenced Jones to ten years’ imprisonment as a prior and persistent offender. Jones appeals claiming the trial court erred in denying his motion for judgment of acquittal in that the weapon was not concealed, and the State did not prove that it was not discernible by ordinary observation.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. The evidence presented to the jury was sufficient to support the conclusion that the firearm was concealed. See State v. Purlee, 839 S.W.2d 584 (Mo. banc 1992). An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).


text:
    Kimber EDWARDS, Appellant, v. Kimberly E. CANTRELL, Respondent.
    No. ED 76272.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 14, 2000.
    Mark D. Hirschfeld, Clayton, MO, for appellant.
    Jeremiah L. Phelan, St. Louis, MO, for respondent.
    Before MOONEY, P.J., SIMON and Sullivan, JJ.
   ORDER

PER CURIAM.

Kimber Edwards appeals the trial court’s judgment denying his Motion to Modify and Motion for Contempt. We find the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm pursuant to Rule 84.16(b).


text:
    In re the Interest of R.V.F. and T.D.C., Minor Children/Respondents, v. O.T., Mother/Appellant.
    No. ED 77489.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 14, 2000.
    Deborah C. Moron Henry, Clayton, for appellant.
    Cynthia Lynn Harcourt-Hearring, Juvenile Officer, Margaret T. Donnelly, Guardian Ad Litem, Clayton, for respondents.
    Before MOONEY, P.J., SIMON, J., and SULLIVAN, J.
   ORDER

PER CURIAM.

O.T. (Mother) appeals the trial court’s denial of her motion to set aside the judgment terminating Mother’s parental rights. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court’s determination is not against the weight of the evidence. In the Interest of M.R. and E.R., 894 S.W.2d 193, 195 (Mo.App. E.D.1995); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


author: MARY RHODES RUSSELL, Judge.

text:
    Rosina WITTMAN, Plaintiff/Appellant, v. NATIONAL SUPERMARKETS, INC., Defendant/Respondent.
    No. ED 77308.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 14, 2000.

      Lon D. Weaver, East Alton, IL, for appellant.
    Ann Marie Piaña, Joann Sandifer, St. Louis, for respondent.
   MARY RHODES RUSSELL, Judge.

Rosina Wittman (“Claimant”) appeals from a judgment entered in favor of National Supermarkets, Inc. (“National”) on its motion for summary judgment. Claimant asserts that there was a genuine issue of material fact as to whether she received the required notice from National rejecting her claim, and whether the general statute of limitations for personal injuries or the savings statute was applicable. We affirm in that we find National’s rejection was proper, and that corporate survival statutes control over a general statute of limitations and a savings statute.

Claimant alleges that, on September 3, 1993, she fell on National’s premises and injured her left hip and lungs. She initially filed suit on March 24, 1995, in the City of St. Louis. The cause was transferred to St. Louis County based upon lack of venue.

On September 25, 1995, National, a Michigan corporation, was dissolved in accordance with the Michigan Business Corporations Act. Pursuant to Michigan corporate dissolution statutes, National notified Claimant and her attorney of the corporate dissolution and the steps to be followed in order to enforce her claim against National. Specifically, National told Claimant that it had to receive her claim before March 29, 1996, or it was barred.

In response, Claimant’s attorney, on November 7,1995, sent National a copy of the petition which had been filed in St. Louis County. National served Claimant with an answer to her petition by mail on May 17,1996, rejecting the claim.

In April 1997, Claimant voluntarily dismissed the action she had filed in St. Louis County. Thereafter, on July 17, 1997, she re-filed the suit in the City of St. Louis, achieving venue there by naming additional party defendants.

National filed an amended motion to dismiss or, in the alternative, motion for summary judgment, asserting that Claimant did not commence a proceeding to enforce her claim against National within 90 days of her claim being rejected, pursuant to Michigan corporate dissolution statutes. The trial court granted the summary judgment motion, entered judgment in favor of National and against Claimant, and dismissed her petition with prejudice. Claimant timely filed her appeal.

We review the granting of summary judgment in a light most favorable to the non-movant. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is an issue of law and as such, our review is de novo. Id. The criteria on appeal for testing the propriety of summary judgment is no different from that employed by the trial court to determine the propriety of sustaining the motion initially. Id. The burden on the proponent of summary judgment is to show a right to judgment flawing from facts about which there is no genuine dispute. Id. at 387.

We address Claimant’s first and second points on appeal together as they both concern whether National has complied with the Michigan corporate dissolution statutes. Claimant’s first point on appeal challenges the granting of summary judgment in that there was a genuine issue of material fact as to whether she received a rejection of claim notice as required by Michigan statute. Her second point questions whether National’s answer to her lawsuit’s petition constituted a proper rejection under Michigan corporate dissolution law.

The laws of the state in which a corporation is domiciled govern its dissolution. State ex rel. Nat’l Super Markets, Inc. v. Dowd, 1 S.W.3d 595, 597 (Mo.App.1999) (citing State ex rel. Nat’l Super Markets, Inc. v. Sweeney, 949 S.W.2d 289, 290 (Mo.App.1997)). National was incorporated in Michigan, and therefore, we look to that state’s laws.

Section 450.1841a M.C.L.A. (Supp.1995) provides in pertinent part:

(3) A claim against the dissolved corporation is barred if either of the following applies:
(a) If a claimant who has given written notice under subsection (1) does not deliver the claim to the dissolved corporation by the deadline.
(b) If a claimant whose claim was rejected by a written notice of rejection by the dissolved corporation does not commence a proceeding to enforce the claim within 90 days from the effective date of the written notice of rejection.

Claimant asserts she never received any letter of rejection and signed an affidavit to that effect. Although Claimant does not dispute that she received an answer to her petition, she asserts it does not constitute a proper rejection of her claim and thus, the 90-day period in which to file her lawsuit never began to run.

Contrary to Claimant’s contention, the Michigan statute does not require that the rejection come in the form of a personalized letter. It does not specify the manner of writing. The statute merely requires that the corporation reject the claim by a “written notice.” The answer filed in response to Claimant’s petition meets the “written notice” requirement as, regardless of its form, it put Claimant on notice of National’s denial of liability.

Claimant further argues that the answer did not originate from the same person that she initially sent her claim to, and it placed an undue hardship on her to be expected to know that the answer filed by National was a rejection of her claim. We find this argument faulty. While the dissolution letter sent by National was written by one of its representatives, it clearly stated that claims were to be made to “National” and may be rejected by “National.” There is no statutory requirement that any specific representative of the company issue the rejection. We find that the answer filed by the representative from National promptly gave notice to Claimant that National was rejecting her claim. From that date, she had 90 days in which to commence a proceeding to enforce her claim. Points one and two are denied.

Claimant’s third point on appeal asserts that the trial court erred in holding that section 516.120 RSMo 1994, the five year statute of limitations for personal injury actions, and section 516.230, the savings statute, did not apply to the suit filed in the City of St. Louis in July 1997. Section 516.230 allows a plaintiff, who voluntarily dismisses a cause of action without prejudice, to re-file the action within one year after the dismissal. Claimant asserts that the trial court erred in holding that the Michigan corporate survival statute, which provides for a 90-day period in which to bring a proceeding against a dissolved corporation, was not tolled by the savings statute or the statute of limitations.

Claimant’s first suit, filed on March 24, 1995, in St. Louis County, was timely filed as to all of the above-mentioned statutes. Claimant, however, voluntarily dismissed this action and re-filed it in the City of St. Louis in July 1997, 14 months after National’s written rejection of her claim, and long after the Michigan statute requirement of 90 days in which to bring a claim against a dissolved corporation.

Claimant argues that the provisions of the Missouri statute of limitations govern as her first lawsuit was timely filed in compliance with the 90-day Michigan corporate survival statute. This argument is without merit.

First, this Court has ruled that procedures in corporate survival statutes must be followed when filing claims against dissolved corporations, for in the absence of such statutes, the cause of action does not exist. State ex rel. Nat’l Super Markets, Inc. v. Dowd, 1 S.W.3d 595, 598 (Mo.App.1999). The distinction between a statute of limitations and a survival statute is that the former affects the time in which a stale claim may be brought, while the latter gives life for a limited time to a right or claim that could otherwise not be brought because a dissolved corporation is not an entity that can be sued. Id.

Second, Claimant’s voluntary dismissal of the first action under Rule 67.01 and later re-filing of it does not cure her timeliness problems. Rule 67.01 provides, “[a] dismissal without prejudice permits the party to bring another civil action for the same cause, unless the civil action is otherwise barred.”

A voluntary dismissal without prejudice renders that cause of action a nullity; it is treated as never having been filed. State ex rel. Consumer Programs Inc. v. Dowd, 941 S.W.2d 716, 717 (Mo.App.1997). When Claimant voluntarily dismissed her first lawsuit, it ceased to exist for purposes of satisfying the corporate survival statute. Claimant’s second suit was time-barred pursuant to the corporate survival statutes as it was filed more than 90 days after National’s rejection of her claim. Rule 67.01 does not support the re-filing of this otherwise untimely suit.

Claimant cites to Cady v. Harlan, 442 S.W.2d 517 (Mo.1969), as being instructive on the issues presented here. In Cady, the plaintiff filed his first law suit within the statute of limitations period and voluntarily dismissed it; re-filed his second suit within the limitations period and the savings period and voluntarily dismissed it; and then re-filed his third lawsuit within the savings period, but not within the applicable statute of limitations period. Id. at 518. The Missouri Supreme Court held that the savings statute applied to all of the suits filed by plaintiff, as long as they were filed within the original period of limitation. Id. at 519. Since plaintiffs third suit was not filed within the statute of limitations period, it was barred.

Claimant argues that since her second suit was within the five-year statute of limitations for personal injury actions, the savings statute rescues the second suit as it was filed within the one-year savings period. This argument overlooks our holding in State ex rel. Nat’l Super Markets, Inc. v. Dowd that a corporate survival statute, not a general statute of limitations, is applicable in corporate dissolution cases. Dowd, 1 S.W.3d at 598. As Michigan corporate survival statutes require that lawsuits enforcing claims be filed within 90 days of a claim’s rejection, Claimant’s second suit was not timely filed. Point three is denied.

The judgment of the trial court is affirmed.

ROBERT G. DOWD, Jr., P.J., and RICHARD B. TEITELMAN, J., concur.

      . All further statutory references are to RSMo 1994.


author: CRANDALL, Judge.

text:
    Mary BRAUN, et al., Plaintiffs/Appellants, v. Nina PETTY, et al., Defendants/Respondents.
    No. ED 77495.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 14, 2000.

      Kenneth J. Heinz, St. Louis, MO, for appellant.
    P. Dennis Barks, Hermann, MO, for respondent.
   CRANDALL, Judge.

Plaintiffs, Mary Braun, et al., appeal from the trial court’s dismissal of their petition to set aside a collector’s deed and to quiet title to certain property purchased by defendants, Nina Petty, et al., at a tax sale. We reverse and remand.

Plaintiffs, individually and as trustees of the Ellis Farm Road and Park Association, brought the present action against defendants, seeking to set aside a collector’s deed and to quiet title to certain property. In their petition, plaintiffs alleged that they held property located in Gasconade County, Missouri, as a park for the benefit and use of the property owners in Ellis Farm. They alleged that Nina Petty received a deed from the Collector of Revenue of Gasconade County, after paying $650.00 for 30.54 acres of land on which their successors in interest failed to pay property taxes for the years of 1985 and 1986. They further alleged that the collector’s deed was void “due to the fact that Plaintiffs predecessors in title were not provided with notice of any tax sale and due to the fact that the deed is so vague.” Plaintiffs requested the court to declare the collector’s deed null and void and to quiet title to the property in their names.

Defendants filed a motion to dismiss plaintiffs’ petition on the grounds (1) that the petition failed to state a claim upon which relief may be granted and (2) that section 140.590, RSMo (1994), the applicable statute of limitations, barred plaintiffs’ action to set aside the tax sale to defendants. The trial court sustained defendants’ motion to dismiss on the basis of the three year statute of limitations. Plaintiffs filed a motion either to amend the order or to set aside the order and grant leave to file them first amended petition. At plaintiffs’ request, the trial court entered a “judgment,” again sustaining defendants’ first amended motion to dismiss. Plaintiffs appeal from that judgment.

In their first point, plaintiffs contend the trial court erred in dismissing their action (1) because they properly pleaded that the tax collector’s deed was void because the description of the property was too vague and (2) because the $650.00 paid for the property was inadequate consideration.

As to their first argument with regard to the validity of the collector’s deed, they contend that the sale was invalid under section 140.530, RSMo (1994), which provides in relevant part: “No sale or conveyance of land for taxes shall be valid if ... the description is so imperfect as to fail to describe the land or lot with reasonable certainty.... ” The deed described the property as “PT NW FR; PT SW FR; PT SE AC: 30.54 Section 6, Township 43, Range 6.”

When reviewing the dismissal of a cause of action, we examine the pleadings, allowing the broadest intendment, treating all alleged facts as true, and construing the allegations in favor of the pleader, to determine whether they invoke principles of law. Olean Assoc., Inc. v. Knights of Columbus, 5 S.W.3d 518, 521 (Mo.App. E.D.1999). A petition is not to be held insufficient merely because of a lack of definiteness or certainty. Wallis v. St. Louis County, 563 S.W.2d 93, 95 (Mo.App.1978). If it appears that the cause of action is barred by time limitations, the motion to dismiss is properly sustained. Olean Assoc., 5 S.W.3d at 521. A motion to dismiss properly raises the defense of statute of limitations. Id. If the statute of limitations is raised as an affirmative defense, the trial court may not dismiss the petition unless it is clearly established on the petition’s face and without exception that the cause of action is time barred. Id.

Section 140.590 sets a three year statute of limitations on actions brought to defeat the sale of land for taxes: “Any suit or proceeding against the tax purchaser ... for the recovery of lands sold for taxes, or to defeat or avoid a sale or conveyance of lands for taxes ... shall be commenced within three years from the time of recording the tax deed....” If the land description in the tax deed is void on its face, however, it does not start the running of the three year statute of limitations. Heppler v.Esther, 534 S.W.2d 533, 537 (Mo.App.1976). Therefore, the threshold issue is whether the indefiniteness of the description could void the deed on its face, with the result that the statute of limitations would not start to run and the present action would not be time barred.

A land description is sufficiently definite if one reasonably skilled in determining land locations can locate it. Wayward, Inc. v. Shafer, 936 S.W.2d 843, 845 (Mo.App. E.D.1996). It is not required that a deed contain a sufficient description so that, based on it alone, the property can be located. Podlesak v. Wesley, 849 S.W.2d 728, 731 (Mo.App. S.D.1993). Extrinsic facts pointed out in the description may be used to identify the land conveyed. Id. A court will declare a deed void for uncertainty of description only where, after relying on oral proof or other extrinsic evidence, the property conveyed by the instrument remains a matter of conjecture. Id. at 733.

In Ijames v. Geiler, 783 S.W.2d 934 (Mo.App.1989), this court found that a collector’s deed describing the property as “Part Lot 21 .80 Acres Survey # 2991 School Dist. C-6 Road Dist. # 13” failed to describe the property with reasonable certainty. In Moise v. Robinson, 533 S.W.2d 234 (Mo.App.1975), the court held that a collector’s deed with the legal description “Pt. Lot 2 SW/4, Section 18, Township 40, Range 3” also failed to describe the property with reasonable certainty. In each of these cases trials were held and evidence adduced. In Podlesak, 849 S.W.2d at 728, this court found that the trial court improperly granted summary judgment because there was a material issue of fact as to the sufficiency of a description of “Section 20 Township 39 Range 16 Pt Lot 8 Beg at Pt on W' Ly R/W 30' Road that is 1229' N & 522' W SE 08 4.0 20.0 000 001 002.002” to identify the land intended to be conveyed.

In the instant action, the description of the property in the deed attempted to comply with the usual mode of describing subdivisions of land according to the United States Government Survey. Hagerman v. Thompson, 68 Wyo. 515, 235 P.2d 750, 758 (Wyo.1951). In that system, there are sixteen different subdivisions of a section of the survey and each of those subdivisions ordinarily contains 40 acres. Id.

Here, the description in the deed contained the letters NW, SW and SE, none of which was followed by any numerals, such as ½. Because the trial court dismissed the action, there was no evidence that the abbreviations NW, SW, or SE, without any accompanying symbols to denote the quarter section, could be understood to refer to the northwest quarter, the southwest quarter, or the southeast quarter, respectively, of the section. In addition, there was no testimony that “AC: 30.52” was sufficient to describe the quantity of land in question and whether it was relevant that the acreage was less than the forty acres usually contained in a section in a government survey. Although the deed further identified the property as land owned by “Ellis, Harry L. & Charlotte & Ellis, Gordon,” there was no testimony that the designation of the owners alone was sufficient to identify the land, especially if the rest of the description would be found to be defective. Because the trial court granted dismissal, no evidence was adduced to establish whether the description in the collector’s deed was ambiguous. The parties should be afforded the opportunity to develop a record upon which it can be determined whether the description in the tax deed was sufficient to describe the land.

As to plaintiffs’ second argument with regard to the insufficiency of the amount paid for the property, plaintiffs acknowledged that Powell v. St. Louis County, 559 S.W.2d 189 (Mo. banc 1977), overruled prior decisions and held that tax sales could not be set aside for inadequate consideration. Plaintiffs have cited no cases holding otherwise. Thus, inadequacy of consideration is not a viable challenge to a tax sale.

Furthermore, the action brought by plaintiffs was not only an action to set aside the collector’s deed, but also an action to quiet title. Section 527.150, RSMo (1994) is the statute relating to suits to determine interest and quiet title; it is remedial in nature and is to be liberally construed. Wallis, 568 S.W.2d at 95. If title has been properly put in issue, a judgment of dismissal without determination of title is error. State ex rel. Missouri Highway and Tramp. Comm’n v. London, 824 S.W.2d 55, 59 (Mo.App. E.D. 1991). This is true even if a plaintiff fails to establish his claim of title. Id. An adjudication of title, however, must be based upon some evidence sufficient to put the title in issue. Id.

In evaluating the sufficiency of a petition in a quiet title action, Missouri courts have required only that the plaintiff allege that he has an estate, interest, or title when the suit is instituted; the nature of his particular estate, interest, or title; and that the defendant has an adverse claim. Morgan v. Morgan, 555 S.W.2d 378, 380 (Mo.App.1977). Plaintiffs’ petition satisfies these standards in that it alleged that they had an interest in the property because, inter alia, the collector’s deed was so vague that there was no reasonable certainty as to the identification of the property; and that defendants had an adverse claim in that they claimed some interest in the property by virtue of the purchase at the tax sale. Sufficient facts were alleged to warrant a detérmination of what interest, if any, plaintiffs held, because they placed in issue the validity of the conveyance to defendants by the collector’s deed. The trial court erred in dismissing the petition as to the quiet title action, because the court should have determined the property rights of the respective parties.

The trial court erred in dismissing plaintiffs’ first amended petition to set aside the collector’s deed and to quiet title because the allegations were sufficient. Plaintiffs’ first point is granted.

In their second point, plaintiffs challenge the trial court’s dismissal of their action on the basis of the three year statute of limitations. If the tax deed was void on its face, it would not start the running of the statute of limitations of three years contained in section 140.590. See Heppler, 534 S.W.2d at 537. In the instant action, it was not clearly established on the petition’s face and without exception that the cause of action was time barred. Upon remand, the court must first determine the validity of the collector’s deed after evidence is presented before it can decide whether the application of section 140.590 bars the present action. At this juncture in the case, given our holding under point one that the court erred in dismissing plaintiffs’ action, the application of the statute of limitations is premature. The trial court erred in dismissing plaintiffs’ petition on the ground that it was time barred. Plaintiffs’ second point is granted.

The judgment of the trial court is reversed and the cause is remanded.

AHRENS, P.J., and JAMES R. DOWD, J., concur.

      . Here, the trial court did not indicate whether the dismissal was with or without prejudice. Generally, under Rule 67.03, an involuntary dismissal is without prejudice unless the court specifies otherwise in its order. A dismissal without prejudice usually is not a final and appealable judgment. Ampleman v. Schweiss, 969 S.W.2d 862, 863 (Mo.App. E.D. 1998). Yet, where the practical effect of the court's dismissal is a termination of the litigation, the judgment is final and appealable. Id. at 864. Here, the dismissal of plaintiffs’ action on the basis of the statute of limitations is a bar to refiling the action; and the dismissal is effectively with prejudice. Therefore, the judgment is final and appealable.


text:
    STATE of Missouri, Respondent, v. Ardes JOHNSON, Appellant.
    No. ED 77775.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 14, 2000.

      Jerry Joe Montgomery, Asst. Public Defender, St. Louis, for Appellant.
    Timothy J. O’Leary, Christopher W. Hinckley, Asst. Pros. Attys., St. Louis, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., PAUL J. SIMON, J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Ardes Johnson (Appellant) appeals the trial court’s judgment finding Appellant guilty of first-degree sexual misconduct, in violation of Section 566.090, following a bench trial. We have reviewed the briefs of the parties and the record on appeal and conclude a reasonable juror could have found Appellant guilty beyond a reasonable doubt, and the trial court’s judgment is supported by substantial evidence. An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).

      . All statutory references are to RSMo (1994), unless otherwise indicated.


author: DRAPER, Judge.

text:
    J.B. ALLEN, INC., Appellant, v. Trisha Lynn PEARSON, Respondent.
    No. ED 77680.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 14, 2000.

      Ryan S. Shaughnessy, St. Louis, MO, for Appellant.
    Ronald J. Wuebbeling, St. Louis, MO, for Respondent.
   DRAPER, Judge.

J.B. Allen, Inc. (hereinafter, “J.B.Allen”) appeals the trial court’s judgment dismissing its petition to enforce the terms of a promissory note claiming: (1) it was improper to raise and determine a suretyship defense by a motion to dismiss and to consider matters outside of the pleadings when ruling on the motion to dismiss; (2) the trial court erred in treating Trisha Pearson’s motion to dismiss as a motion for summary judgment in that the trial court failed to give J.B. Allen the requisite notice of its treatment as such and did not allow time to present additional evidence to respond to Trisha Pearson’s motion; and (3) there are genuine issues of material fact precluding judgment as a matter of law. We reverse and remand.

J.B. Allen sold a Mailboxes, Etc. franchise, including equipment, inventory, and receivables to Pearson, Inc. On November 27,1995, the parties executed a promissory note for $47,500 in connection with the sale. Four people signed the promissory note: Herby Pearson, in his capacity as President of Pearson, Inc. and as “Guarantor”; Trisha Pearson, in her capacity as Secretary of Pearson, Inc. and as “Guarantor”; Herby Pearson, Sr., as “Guarantor”; and Barbara Pearson as “Guarantor.”

On or about September 1,1998, Pearson, Inc. became delinquent on the promissory note, and when it failed to make the principal and interest payments when due in September and October, ultimately defaulted. J.B. Allen made demand upon Pearson, Inc. to pay the amounts due, but Pearson, Inc. failed to tender the amounts owing. On October 28, 1998, J.B. Allen gave notice of his intention to accelerate the amount due under the promissory note and sued Pearson, Inc. to collect on the note.

On November 8, 1999, the parties entered into a stipulation for settlement. The settlement determined, inter alia, the defendants, Herby Pearson, Sr., Herby Pearson, Jr., and Barbara Pearson, would pay as a group to J.B. Allen $23,000, in three installments of $7,666.67, payable on November 23, 1999, January 8, 2000, and March 8, 2000. The settlement also stated the claim was to be dismissed as to the named defendants upon payment of all monies under the installment plan. Finally, the settlement dismissed the cause of action 'without prejudice as to Trisha Pearson. The record reflects that the first two payments have been made, and the third payment should have been made before this appeal was filed.

On November 10, 1999, J.B. Allen brought an action against Trisha Pearson to collect on the same promissory note defaulted on by Pearson, Inc. J.B. Allen sought approximately $22,000 in damages, which included principal and interest under the note, attorney fees, and costs of collection. An answer was not filed. J.B. Allen filed a motion for summary judgment on December 1, 1999. Trisha Pearson responded to the motion for summary judgment and also filed a motion to dismiss. The motion to dismiss alleged that the promissory note had been satisfied in full by the payments agreed to under the stipulation for settlement, that she had no knowledge and did not consent to the settlement, and that the settlement was a material alteration of the promissory note resulting in discharge of liability as an alleged guarantor.

On March 13, 2000, the trial court entered an order denying J.B. Allen’s motion for summary judgment and granting Trisha Pearson’s motion to dismiss. A notice of appeal was promptly filed, but the order was not denominated a final judgment until the court filed its order nunc pro tunc on April 18, 2000. J.B. Allen submitted his brief on July 14, 2000, with a copy of the final judgment filed on August 14, 2000, and submitted as a supplement to the legal file. This appeal follows.

To ascertain the proper standard of review, we must determine whether the trial court treated Trisha Pearson’s motion to dismiss as a motion for summary judgment. Therefore, we will address J.B. Allen’s second point on appeal first. J.B. Allen asserts the trial court erred in treating Trisha Pearson’s motion to dismiss as a motion for summary judgment in that the trial court did not provide timely notice of its intention to treat her motion as such, and did not provide it an opportunity to present additional evidence to respond to her motion. J.B. Allen alleges that at the hearing for the motion to dismiss, the trial court informed counsel for the first time it intended to treat the motion to dismiss as a motion for summary judgment. Trisha Pearson argues the trial court was correct in treating the motion to dismiss as a motion for summary judgment, and J.B. Allen waived any objection to the notice and response requirement after the trial court offered to provide it with additional time to respond to the pending motion.

Before a trial court may treat a motion to dismiss as one for summary judgment, when matters outside the pleadings are presented and not excluded, it must first notify the parties that it is going to do so and give the parties an opportunity to present all materials pertinent to the motion for summary judgment. Rule 55.27(a); Manzer v. Sanchez, 985 S.W.2d 936, 939 (Mo.App. E.D.1999). When trial courts act under Rule 55.27(a), they are urged, but not required, to have the moving party refile the motion so that it complies with Rule 74.04, the summary judgment rule, and then order the opposing party to follow these requirements as well. Gladis v. Rooney, 999 S.W.2d 288, 289 (Mo.App. E.D.1999).

In this case, there is ample evidence that the motion to dismiss was treated as a motion for summary judgment. The trial court relied on the stipulation of settlement entered against Pearson, Inc. in the previous case in ruling on the motion to dismiss. This stipulation of settlement was clearly outside the pleadings and not excluded. The final judgment also indicates that the motion to dismiss was treated as a motion for summary judgment stating J.B. Allen waived the thirty day response time. Finally, both parties argue in their briefs that the motion to dismiss was treated as a motion for summary judgment. Generally, we will not consider matters not contained in the record, and factual assertions in the briefs cannot supplement the transcript. McCormick v. St. Louis University, Inc., 14 S.W.3d 601, 605 (Mo.App. E.D.1999). However, matters to which counsel for the adverse party stipulates, agrees, or concedes constitute an exception to the rule that the transcript may not be supplemented by any extraneous matter in one party’s brief. Consumer Contact Co. v. Dept. of Revenue, 592 S.W.2d 782, 785 (Mo. banc 1980); State ex rel. Dankelson v. Holt, 994 S.W.2d 90, 94 (Mo.App. S.D.1999). Based on the foregoing, we conclude that the motion to dismiss was treated as a motion for summary judgment.

Since the motion to dismiss was treated as a motion for summary judgment, even when the trial court fails to provide notice of its doing so, the court is not precluded from ruling on the motion where the nonmoving party acquiesces in the trial court’s action and, thereby, waives the notice requirement. Keim v. Big Bass, Inc., 949 S.W.2d 122, 125 (Mo.App. E.D.1997); Sale v. Slitz, 998 S.W.2d 159, 162 (Mo.App. S.D.1999). In this case, the final judgment contained a handwritten notation, initialed by both parties’ attorneys stating J.B. Allen consented to hearing the motion and waived time for response. It is evident from this notation that J.B. Allen waived any objection it had to the trial court’s treatment of the motion to dismiss as a motion for summary judgment and its lack of notice. Point denied.

J.B. Allen’s third point on appeal claims the trial court erred in granting summary judgment in favor of Trisha Pearson and dismissing its petition because the trial court erroneously declared the law in not requiring proof of the loss or impairment of the right of recourse against Pearson, Inc.. Further, it alleges the trial court erred because it did not require Trisha Pearson to offer any evidence of how her right of recourse against Pearson, Inc. was impaired by the stipulation of settlement entered into between J.B. Allen and Pearson, Inc.. J.B. Allen argues that in the absence of this evidence, Trisha Pearson was not entitled to judgment as a matter of law. J.B. Allen’s fourth point on appeal argues that the absence of this evidence presents a genuine issue of material fact regarding the extent of Trisha Pearson’s impairment precluding summary judgment in her favor.0 We agree.

In addressing J.B. Allen’s allegation that the trial court erred in granting summary judgment in favor of Trisha Pearson, it is well settled that when considering an appeal from summary judgment, we review the record in the light most favorable to the nonmovant. ITT Commercial Fin. v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). Our review is essentially de novo. Id. at 376. The criteria on appeal for testing the propriety of summary judgment are no different from those employed by the trial court to determine the propriety of sustaining the motion initially. Id. The burden of proof on a summary judgment movant is to establish a legal right to judgment flowing from facts about which there is no genuine dispute. Id. at 378.

The nonmovant must show by affidavits, depositions, answers to interrogatories, or admissions on file, that one or more of the material facts shown by the movant to be without any genuine dispute is, in fact, genuinely disputed. Id. A “genuine issue” exists where the record contains competent materials that establish a plausible, but contradictory, version of the movant’s essential facts. Id. at 382.

Trisha Pearson argues that she was unaware J.B. Allen and Pearson, Inc. entered into the stipulation for settlement; she did not consent to the settlement, nor was she a party to the settlement. Therefore, she argues she is discharged from any liability as a guarantor. Trisha Pearson relies on Fuhrer v. Sheahan, 857 S.W.2d 439, 441-42 (Mo.App. E.D.1993) and Kirkland v. Todd, 856 S.W.2d 936, 939 (Mo.App. S.D.1993) which hold that if there is a change in the terms of a guaranteed debt which enlarges or lessens liability, then the change is material, and as such, discharges a guarantor’s liability if that guarantor did not consent to the change in terms.

However, the legislature enacted Section 400.3-605 RSMo (1994) which directly applies to this situation and is not addressed in Führer or Kirkland. Section 400.3-605(b) states that the discharge of the obligation of a party to pay an instrument does not discharge the obligation of an endorser or accommodation party having a right of recourse against the discharged party. An accommodation party is defined in Section 400.3-419(c) as a person whose signature is accompanied by words indicating that the signer is acting as surety or guarantor with respect to the obligation of another party on the instrument. Trisha Pearson signed the promissory note in her capacity as Secretary of Pearson Inc. and in her individual capacity as “Guarantor.” Therefore, she is the accommodation party having a right of recourse against the discharged party, Pearson, Inc., pursuant to Section 400.3-605(b).

Trisha Pearson’s status as an accommodation party alone does not answer the question of whether she has been discharged under the promissory note. Section 400.3-605(c) states when an extension of time is granted by the creditor to the principal debtor, this extension discharges the accommodation party having a right of recourse against the principal debtor to the extent the accommodation party proves the extension caused a loss to the accommodation party with respect to her right of recourse. Moreover, under Section 400.3-605(d), when there is a material modification of the obligation, the accommodation party is discharged to the extent the modification causes loss to the accommodation party with respect to the right of recourse.

In this case, it is clear these statutory provisions apply. An accommodation party is required to show the extent of loss, which results in the impairment of the right of recourse, when arguing that a material modification or extension of time discharges its obligation under a promissory note. Here, there is nothing in the record to support a finding that Trisha Pearson presented any evidence as to her loss and impairment of her right of recourse against Pearson, Inc., which is required under the statute. We find the absence of this evidence presents a genuine issue of material fact as to the extent of her loss or impairment of her right of recourse, thus precluding summary judgment in her favor.

We reverse and remand.

GARY M. GAERTNER, Sr., P.J., and CRAHAN, J., concur.

      . The final judgment had a handwritten sentence, initialed by both parties’ attorneys which stated: “Plaintiff [J.B. Allen] consents to hearing of Motion and waives 30 day response time without waiving objections to issues raised in Reply to Response to Motion for Summary Judgment."

      . All further statutory references are to RSMo (1994) unless otherwise indicated.


author: BARNEY, Chief Judge.

text:
    FIRST AMERICAN TITLE INS. CO., a corporation, and Hogan Land Title Co., Inc., a corporation, Plaintiffs-Respondents, v. Roy BIRDSONG and Collyer Kelling, Defendants-Appellants, v. Harold W. Grissum, Mary Alice Grissum, Bobbi Bydalek, HCH Ozark Investors, Inc., Daniel E. Ruda, Santo M. Cantanese, Vacation World, Inc., Dwight Sprague, and Branson Commercial Property Investors Joint Venture, Defendants-Respondents.
    No. 23228.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 16, 2000.

      Richard E. Dorr and J. Michael Bridges, Springfield, for appellants.
    Mark C. Fels and Gregory J. Smith, Springfield, for respondent Grisson.
    Joseph A. Bohrer, Springfield, for respondents First American & Hogan Land Title.
    Charles B. Cowherd & Michael S. Lawson, Springfield, for respondents HCH, Ruda, Catanse, Vacation World, Sprague & BCPI.
   BARNEY, Chief Judge.

Defendants, Roy Birdsong and Collyer Kelling, (jointly, “Appellants”) appeal from a judgment entered in an interpleader action, involving the disposition of the principal amount of $200,000.00, plus interest, held in an escrow account by Respondents First American Title Company and Hogan Land Title Company, Inc. (jointly, “First American Title”). In its judgment, described more fully below, the interpleader court gave no portion of the escrow account to either of the Appellants who now raise three major points of trial court error, discussed infra.

We glean from the record that First American Title was asked to provide title insurance in conjunction with the sale of three tracts of land in Taney County (variously “the land” or “the three tracts of land”) by Interpleader Defendant Bobbi Bydalek (“Bydalek”) to William and Betty Gehrs and James P. and Joyce L. Brines (“the Gehrs and Brines”). At the time First American Title was asked to provide the title insurance, the land was the subject of litigation and appeals relating to a previous sale of the same three tracts of land and involving Appellants and almost all other interpleaded parties. See detailed discussion in Birdsong v. Bydalek, 953 S.W.2d 103 (Mo.App.1997) (“Birdsong III”); see also Birdsong v. Bydalek, 931 S.W.2d 217 (Mo.App.1996) (“Birdsong II”); and Birdsong v. Bydalek, 905 S.W.2d 896 (Mo.App.1995) (“Birdsong I”). In order to obtain First American Title’s agreement to provide title insurance, By-dalek entered into an indemnity agreement with First American Title and Bydalek and BCPI entered into a related escrow disbursement agreement with each other. By the terms of these two agreements, Bydalek and BCPI were to deposit $150,000.00 and $50,000.00 respectively into an escrow account held by First American Title. Under the terms of these agreements, First American Title was obligated to return any unused portion of the tendered amount of $200,000.00 to Bydalek and BCPI when title to the land was free of the effects of the pending lawsuit and when First American Title had no present or contingent liability arising out of the lawsuit. After Bydalek and BCPI duly tendered their respective amounts into the escrow account, First American Title provided the required title insurance. Thereafter, Bydalek seasonably conveyed her interest in the three tracts of land to the Gehrs and Brines on September 12, 1994.

On November 22, 1994 — during the pen-dency of Birdsong I and later Birdsong II, and prior to the filing of the instant inter-pleader action — in the course of a separate litigation, Interpleader Defendants Harold and Mary Grissum (“the Grissums”) obtained a writ of attachment against Byda-lek’s interest in the escrow account. This was followed by a garnishment in aid of the writ of attachment. Later, on December 2, 1994, Bydalek signed a security agreement, duly filed, in which she granted the Grissums a security interest in the $150,000.00 which Bydalek had paid into the escrow account. On November 22, 1994, the Grissums filed suit against Byda-lek, eventually obtaining a money judgment on April 5, 1996, against Bydalek in the principal amount of $177,718.89.

On August 22, 1997, this Court rendered its opinion in Birdsong III, 953 S.W.2d at 103. As more fully set out below, the opinion affirmed that part of a second amended judgment of the Circuit Court of Taney County, entered November 21, 1996, which, inter alia, granted Appellants a judgment against Bydalek in the principal amount of $133,332.00, together with interest at the rate of 20 percent. Based on this monetary judgment, Appellants asserted in the interpleader action and again on appeal that they had a claim to Byda-lek’s share of the funds in the escrow account. Because of the competing claims to the escrow account, First American Title filed the instant interpleader action from which judgment Appellants are the sole appealing parties.

The record shows that the interpleader court, inter alia, granted judgment to the Grissums for 75 percent of the escrowed funds contributed by Bydalek, “pursuant to their lien of attachment which was perfected by the entry of the April 5, 1996, judgment ... against defendant Bydalek in the sum of $177,718.99.” Additionally, the trial court also gave a judgment for 25 percent of the escrowed funds to BCPI, based on the indemnity agreement entered into between Bydalek and First American Title and the escrow disbursement agreement between BCPI and Bydalek.

In their three Points Relied On, Appellants generally assert that the trial court erred in its judgment by: (1) determining that Appellants had “no lien, claim, or encumbrance that would constitute a cloud on the title” to the land; (2) finding in favor of the Grissums for 75 percent of the escrowed funds on the basis of a lien of attachment; and (3) finding in favor of BCPI for 25 percent of the escrowed funds on the basis of the “escrow disbursement agreement.” They maintain the judgment of the trial court was against the weight of the evidence, was not based on substantial evidence and was based on erroneous application of law to the facts.

“We will sustain the judgment of the trial court unless the judgment is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” Amwest Sur. Ins. Co. v. Stamatiou, 996 S.W.2d 708, 711 (Mo.App.1999).

I.

In their brief, Appellants maintain that before the instant interpleader action, the Taney County Circuit Court’s second amended judgment — detailed in Birdsong III — not only awarded them a money judgment against Bydalek in the amount of $133,332.00 plus interest, but also entitled them to assert a “contractual security interest,” a judgment lien and/or an equitable lien against the land. They further maintain that the escrowed funds should have been used to settle their claimed interest and/or liens. Appellants also maintain that the trial court’s .findings went beyond the scope of the pleadings.

Appellants’ first point of error has no merit. This is because the trial court in its second amended judgment, as affirmed with modifications by this Court in Birdsong III, infra, had already considered and settled the matter Appellants now wish to litigate anew in the course of the instant interpleader action. “The doctrine of res judicata, commonly referred to as ‘claim preclusion,’ operates as a bar to the reassertion of a cause of action that has been previously adjudicated in a proceeding between the same parties or those in privity with them.” Jordan v. Kansas City, 929 S.W.2d 882, 885 (Mo.App.1996).

In Birdsong III, this Court set aside the second amended judgment’s award of monetary damages in favor of Bydalek and against Appellants arising from Appellants’ purported tortious interference with Bydalek in her contract with HCH-BCPI. Birdsong III, 953 S.W.2d at 125. In doing so, this Court held that after July 1, 1993, Appellants were accorded the “status,” of a “potential secured creditor,” and therefore did not tortiously interfere with the contract between Bydalek and HCH BCPI, when they filed their three notices of lis pendens in connection with their suit against Bydalek and others. See Birdsong III, 953 S.W.2d at 113-15. Based primarily on this Court’s foregoing recitals, supra, coupled with Appellants’ proposed interpretation of the contract language found in an “Assignment of Real Estate Purchase Agreement and Agreement of Joint Venture” (“Assignment Memo”), Appellants now pose the rather ingenious argument that this Court gave recognition to their “security interest” or “equitable hen” in the three tracts of land.

These asseverations by Appellants have no merit. This is because the second amended judgment, as affirmed in pertinent part by this Court in Birdsong III, 953 S.W.2d at 125, declared that Appellants: (a) “had no interest [in the land] since July 1, 1993” under the Assignment Memo, Id. at 111; (b) ordered that the Assignment Memo with the abbreviated version of the Bydalek/Appellants contract be “released and declared to be null, void and of no force or effect,” Id.; (c) ordered that all notices of lis pendens be “released and discharged,” Id.; (d) declared that the Bydalek/HCH-BCPI contract for the sale of the three tracts of land was “in force ‘through and including September 12, 1994,’ and that it was ‘specifically performed’ on that date.” Id.

Additionally, while this Court recognized a reasonable relationship between the first three counts of Appellants’ suit, sounding in equity, and Appellants’ exercise of their legal right to file notices of lis pendens, as set out in section 527.260, RSMo 1986, see Birdsong III, 953 S.W.2d at 114, this Court neither gave nor recognized Appellants’ claimed “security interest” in the three tracts of land. Nor did the trial court or this Court give any recognition to Appellants’ claimed “equitable lien.” Also, while this Court determined that Bydalek could not demonstrate a causal connection between the filing of the Assignment Memo by Appellants and her failure to close her sale in August 1993, Birdsong III, 953 S.W.2d at 115, we fail to see where that determination by this Court somehow gave recognition to Appellants’ present claims of a continuing interest in the three tracts of land. See supra. At best, this Court only concluded Bydalek and HCH BCPI failed to sustain their burden of proof in their “interference tort claim” against Appellants. Id. The Birdsong trial court by its second amended judgment, as modified and affirmed by this Court, has already settled the issues Appellants now seek to revisit. Appellants may not raise the issues again in the instant appeal. Jordan, 929 S.W.2d at 882.

Appellants also claim’ that their money judgment obtained against Byda-lek, in the principal sum of $133,332.00 together with interest, created a judgment hen against the land in question. They argue that an “inchoate” judgment lien attached May 31, 1994, with the filing of the original judgment entry by the trial court, and became “consummate” on November 21, 1996, the date of the entry of the second amended judgment by the Birdsong trial court. We disagree.

Section 511.350.1 reads, in pertinent part: “[jjudgments and decrees rendered ... by any district of the court of appeals, [or] by any circuit court ... shall be liens on the real estate of the person against whom they are rendered, situate in the county for which or in which the court is held.” With certain distinct exceptions inapplicable to the instant matter, “a judgment hen attaches to real estate on the date of the judgment.” Boatmen’s Bank v. Foster, 878 S.W.2d 506, 509 n. 4 (Mo.App.1994); see Rule 74.08 (“the lien of a judgment commences upon entry of the judgment....”); Pruellage v. De Seaton Corp., 407 S.W.2d 36, 39 (Mo.App.1966); see also State ex rel. Turner v. Sloan, 595 S.W.2d 778, 780 (Mo.App.1980). Rule 74.01(a) provides that a judgment “includes a decree and any order from which an appeal lies.” “Absent one of the exceptions expressly set out in § 512.020 ... ‘a prerequisite to appellate review is that there be a final judgment.’ ” City of St. Louis v. Hughes, 950 S.W.2d 850, 852 (Mo. banc 1997)(emphasis added)(quoting Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995)). “A final and appealable judgment disposes of all issues in the case and leaves nothing for future determination, unless the trial court has specifically designated the order as a final judgment for purposes of appeal.” Birdsong I, 905 S.W.2d at 897(quoting Bay’s Texaco Serv. & Supply Co. v. Mayfield, 792 S.W.2d 50, 51 (Mo.App.1990)); see Rule 74.01.

As previously set out, when Appellants and Bydalek appealed from the original May 31, 1994, judgment, this Court dismissed the appeals because the judgment failed to resolve all claims in the litigation. Birdsong I, 905 S.W.2d at 897. This Court also dismissed the appeals of all litigants from the subsequent amended judgment, because it still did not resolve all claims. Birdsong II, 931 S.W.2d at 218. All the claims were finally adjudicated when the second amended judgment was entered on November 21, 1996. Birdsong III, 953 S.W.2d at 111. Accordingly, Appellants’ judgment lien against any real property owned by Bydalek in Taney County, Missouri would have attached on November 21, 1996. See § 511.350.1; Cochenour v. Cochenour, 717 S.W.2d 531, 532 (Mo.App.1986). However, by this date Bydalek had already, on September 12, 1994, conveyed away to Gehrs and Brines all of her interest in the three tracts of land — more than two years before the second amended judgment became final. Accordingly, Appellants’ judgment lien could not have attached to the three tracts of land. See, supra.

Lastly, Appellants claim that the interpleader court’s findings and declarations should have been limited to the parties involved but, instead, went beyond the scope of the pleadings and more closely resembled findings in a quiet title action.

This portion of Point One has no validity for two primary reasons. First, in Appellants’ own prayer for relief contained in their amended answer, Appellants sought a determination that their purported judgment lien had “priority over and precedes any interests acquired or claimed by [the Gehrs and Brines] the insureds of First American Title....” However, the Gehrs and Brines were not parties to the interpleader proceedings. Second, the record shows the following colloquy involving Appellants’ counsel:

[Counsel for Appellants] Judge, I believe we all agree. And, of course, we’re the ones that have something at stake here.
[The Court] Right.
[Counsel for Appellants] But we are going to put all the evidence that’s pertinent to it with these documents.
[Counsel for the Grissums] And if I may just make the record clear. I’m understanding that by express consent the parties intend to litigate all issues relating to the interest of all these parties in this real estate and in this escrow account and "determine any clouds on the title, if any, there are.
[Counsel for Appellants] And our position is you necessarily have to do that because First American, that 200,000’s first obligation is to clear up the title.

The foregoing colloquy, together with other similar remarks made by Appellants’ attorney at trial, sought to broaden the issues in the interpleader action beyond the disposition of the escrowed funds, and precludes Appellants from now raising this sub-point of error. “[A]s a general rule a party may not ‘complain of alleged error in which, by his own conduct at trial, he joined or acquiesced.’ ” Smith v. Associated Natural Gas Co., 7 S.W.3d 530, 534 (Mo.App.1999) (quoting Eyberg v. Shah, 773 S.W.2d 887, 897 (Mo.App.1989)). Point One is denied.

II. and III.

Appellants second and third points, relating to the proportionate disposition by the interpleader court of the escrowed funds, are logically related and are reviewed out-of-turn for ease of understanding.

In their third point, Appellants maintain that the interpleader court erred in awarding BCPI 25 percent of the escrowed funds. Appellants argue that under the indemnity agreement entered into by First American Title with Bydalek and the escrow disbursement agreement between Bydalek and BCPI, the funds were first to be used to clear the title from Appellants’ claims against the land and to protect First American Title from liability relating to such claims but that this was never accomplished. In their second point, Appellants assert that the interpleader court erred in awarding the Grissums- 75 percent of the escrowed funds on the basis of a lien of attachment, because neither the security agreement given by Bydalek to the Gris-sums, see supra, nor the indemnity agreement between Bydalek and First American Title entitled the Grissums to that award. These points have no merit.

As set out previously, Birdsong III affirmed the portions of the second amended judgment that determined Appellants had no further interest in the land as of July 1, 1993; dissolved all of Appellants’ notices of lis pendens; and declared the Byda-lek/HCH BCPI contract for the sale of the land had been performed on September 12, 1994. Birdsong III, 953 S.W.2d at 125. Furthermore, and as discussed previously, although the second amended judgment accorded Appellants a money judgment against Bydaiek on November 21, 1996, no judgment lien attached to the land because Bydaiek had previously divested herself of all interest in the land on September 12, 1994, by selling the land to the Gehrs and Brines. Accordingly, under the terms of the indemnity agreement and escrow disbursement agreement with Bydaiek and BCPI, First American Title was released from any present or contingent liability claims relating to the land arising from the Birdsong litigation filed by Appellants against Bydaiek. Therefore, except for certain costs and expenses related to the interpleader action, BCPI was entitled to a refund of its 25 percent share of the es-crowed funds and Bydaiek was entitled to a refund of her 75 percent share of these same funds. However, as discussed, infra, Bydaiek had already given a security interest in her share of the escrowed funds to the Grissums.

As previously discussed, the Grissums claimed that Bydaiek owed them money. In their first attempt to collect this debt, the Grissums attempted to obtain an interest in Bydalek’s escrowed monies by use of a prejudgment writ of attachment, issued on November 22, 1994, and by garnishment. This was accomplished after the three tracts of land had passed to the Gehrs and Brines on September 12, 1994. Next, on December 2, 1994, the Grissums also obtained from Bydaiek a duly perfected security interest in her share of the escrow account in question, as collateral for the debts owed by Bydaiek to the Grissums. Finally, the Grissums obtained a default judgment against Bydaiek in the principal sum of $177,718.99 on April 5, 1996.

Although the interpleader court based its award to the Grissums on their lien of attachment, the Grissums’ perfected security interest in the assigned assets — under the terms of the December 2, 1994, security agreement — makes it unnecessary for us to decide whether the lien of attachment or the garnishment in aid of attachment were valid. Our primary concern on appeal of a court-tried case “is the correctness of the result, not the route taken to reach it,” United Missouri Bank, N.A. v. Beard, 877 S.W.2d 237, 241 (Mo.App.1994). The duly perfected security agreement of December 2, 1994, gave the Grissums priority over Appellants’ unsecured interest as to Bydalek’s share of the escrow account — subject, of course, to costs and expenses adjudged by the interpleader court. Points Two and Three are denied.

The judgment is affirmed.

      . Aside from Appellants and Harold W. Gris-sum and Mary Alice Grissum, the other In-terpleader Defendants were HCH Ozark Investors, Inc., Daniel Ruda, Santo Catenese, Vacation World, Inc., Dwight Sprague and Branson Commercial Property Investors Joint Venture (we shall variously refer to the foregoing parties as ''BCPI’' or "HCH-BCPI”). Ruda and Catenese were shareholders of HCH Ozark Investors, Inc.

      . On September 8, 1995, this Court dismissed all appeals in Birdsong I because the judgment failed to resolve all the claims. On October 22, 1996, this Court dismissed all appeals in Birdsong II because the amended judgment again did not resolve all claims. See Birdsong III, 953 S.W.2d at 110-11.

      . A security interest in personal property is defined in section 400.1-201(37), RSMo 1994, as an "interest in personal property ... which secures payment or performance of an obligation.” Under Section 400.9 — 105(1)(Z), RSMo 1994, a security agreement "means an agreement which creates or provides for a security interest.” As a general rule, under Missouri law, no precise words are required to convey a security interest, but there must be some language in the agreement which actually conveys a security interest. See In re Smith, 167 B.R. 895 (Bkrtcy.E.D.Mo.1994). Further, as a general rule, a filing is required to perfect a security interest. See generally, §§ 400.9-302-306, RSMo 1994, and later amendments.

      . The original contract for the sale of the land was between Bydalek and HCH Ozark Investors. HCH subsequently assigned its interest to BCPI, a joint venture made up of HCH; Vacation World, Inc.; and Dwight Sprague.

      . Included in its judgment of tortious interference against Appellants was an award to By-dalek compensating Bydalek for monies paid to HCH-BCPI to cover interest and attorney's fees. Birdsong III, 953 S.W.2d at 125.
      In addition to reversing the tortious interference award, this Court reversed both the second amended judgment’s award of damages to Bydalek for Appellants’ purported breach of contract and the trial court's denial of Appellants’ claim against Bydalek for breach of fiduciary duty. Id.

      . Appellants filed their suit in July of 1993.

      . As set out in abridged form in Birdsong III, 953 S.W.2d at 126-27, the Assignment Memo provided, in pertinent part, that:
      ASSIGNMENT OF REAL ESTATE PURCHASE AGREEMENT AND AGREEMENT FOR JOINT VENTURE
      BYDALEK presently is the owner of an agreement to purchase real estate in Branson Missouri comprised of three tracts....
      BYDALEK hereby assigns to BIRDSONG and KELLING that BYDALEK shall be compensated as follows:
      1. BIRDSONG and KELLING shall pay the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) to BYDALEK at the time of execution of this agreement to be paid on the purchase price on the underlying contract.
      2. BYDALEK, BIRDSONG and KELLING agree to pay the sum of FIFTY THOUSAND DOLLARS ($50,000.00) on the contract on or before June 11, 1993.
      3. BIRDSONG and KELLING agree to use diligent efforts to obtain financing to close the underlying purchase transaction on or before its scheduled closing date of July 9, 1993. In the event they are unable to do so, they will notify BYDALEK of that inability on or before July 1, 1993, in which event the money advanced to BYDALEK shall be treated as a loan. In that event, BIRDSONG and KELLING will immediately reassign their interest in said agreements to BYDALEK and BYDALEK shall execute a note that by its terms will repay the amounts paid on the contract by BIRDSONG, KELLING and BY-DALEK at twenty percent (20%) interest, due August 1, 1993, secured by an interest in the real estate in question. (Italics supplied).

      . "Courts may take judicial notice of their own records in prior proceedings which are between the same parties and are concerned with the same basic facts involving the same general claims for relief.” In Interest of C.M.W., 813 S.W.2d 331, 333 (Mo.App.1991). In Count I of their Birdsong pleadings, supra, Appellants sought a declaration of the parties’ "ownership and purchase rights as to [the land]." Birdsong III, 953 S.W.2d at 114. Appellants' Counts II and III also sought specific performance of contracts relating to the land. Id. As observed previously, in the second amended judgment the trial court determined that Appellants had no interest in the land and denied Appellants’ counts for specific performance. These determinations were affirmed by this Court in Birdsong III. Id. at 125.
      It is noteworthy to observe that nowhere in their Taney County Circuit Court pleadings did Appellants specifically seek the imposition of an "equitable lien” on the latid. Res judi-cata "applies not only to points and issues upon which the court was required by the pleadings and proof to form an opinion and pronounce judgment, but to every point properly belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.” King Gen. Contractors v. Reorganized Church, 821 S.W.2d 495, 501 (Mo. banc 1991). "Put otherwise, a party may not litigate an issue and then, upon an adverse verdict, revive the claim on cumulative grounds which could have been brought before the court in the first proceeding.” Id.

      . We observe that "[ejquitable liens have been enforced under various facts and circumstances and it is difficult, if not impossible, to give an exact definition of what is meant by the term....” Miller v. Heisler, 187 S.W.2d 485, 491 (Mo.App.1945). ”[I]n general it is a right, not recognized at law, but only in equity, which a court of equity will enforce in a proper proceeding by adjudging that a fund, or property, or the proceeds thereof, be applied in full, or in part, to the satisfaction of a particular debt or demand.” Id. "An equitable lien may attach to property for the purpose of securing payment of an existing obligation and is ancillary to and separate from the debt.” Fredco Realty, Inc. v. Jones, 906 S.W.2d 818, 822 (Mo.App.1995). "The necessary requirements of an equitable lien are: 1) a duty or obligation owed by one person to another; 2) a res to which that obligation fastens and which can be identified; and 3) an intent, express or implied, that the property serve as security for the payment of the debt or obligation.” Id.; see also Iota Mgmt. Corp. v. Boulevard Inv. Co., 731 S.W.2d 399, 420 (Mo.App.1987). In this opinion, we need not reconcile the tenents of the Uniform Commercial Code with the common law concept of equitable liens.

      . All statutory references are to RSMo 1994, unless otherwise noted.

      . All rule references are to Missouri Court Rules (1995).

      . As best we understand the record, during the entire course of the Birdsong litigations the trial court never entered an order pursuant to Rule 74.01(b), determining that there was no just reason for delay of the review of any of the claims submitted by the parties.

      .Recall that the second amended judgment held that Appellants had no interest in the land after July 1, 1993, and before Appellants' alleged "inchoate” interest arose. See Birdsong III, 953 S.W.2d at 110-11.

      . Additionally, Appellants do not cite to any authority supporting their proposition of error. "Failure to cite relevant authority supporting the point or to explain the failure to do so preserves nothing for review.” Kent v. Charlie Chicken, II, Inc., 972 S.W.2d 513, 516 (Mo.App.1998).