author: DANIEL E. SCOTT, Chief Judge.

text:
    James David MERRICK, Appellant, v. STATE of Missouri, Respondent.
    No. SD 30343.
    Missouri Court of Appeals, Southern District, Division Two.
    Nov. 4, 2010.
    Nancy A. McKerrow, Columbia, for Appellant.
    Chris Koster, Atty. Gen., Jayne T. Woods, Asst. Atty. Gen., Jefferson City, for Respondent.
   DANIEL E. SCOTT, Chief Judge.

The error here permits us to be brief. James Merrick (Movant) was found guilty of two felonies and lost his direct appeal. State v. Merrick, 257 S.W.3d 676 (Mo.App.2008). He sought Rule 29.15 post-conviction relief, claiming his trial counsel was ineffective in 12 respects. The motion court held an evidentiary hearing, denied relief, but did not issue findings of fact or conclusions of law adequate for appellate review. We remand per Movant’s Point I and these oft-cited principles:

Rule 29.15(j) mandates that a post-conviction court issue findings of fact and conclusions of law on all issues presented whether or not a hearing is held. An appellate court’s role in reviewing a post-conviction order and judgment is limited to determining if the findings and conclusions of the motion court are clearly erroneous. However, to perform its duty, an appellate court must have before it findings and conclusions from a motion court that are specific enough to permit meaningful review. When a motion court’s findings on an issue lack specificity to the point the appellate court cannot make a meaningful review, a remand for specific findings and conclusions on that issue is required.

Copeland v. State, 190 S.W.3d 545, 548 (Mo.App.2006) (citations omitted).

The motion court received considerable evidence, including testimony from Mov-ant, trial counsel, and other witnesses, then repeated two boilerplate sentences in describing and rejecting each of Movant’s claims: “Movant alleges in this claim that trial counsel was ineffective by failing to [brief description ]. There was no error here, and the claim that defense counsel was ineffective in this regard is without merit.”

Such rulings are too general for meaningful review (Copeland, supra), and we cannot infer findings and conclusions therefrom. See Crews v. State, 7 S.W.3d 563, 567 (Mo.App.1999). “The absence of findings or conclusions giving the basis for the trial court’s action leaves an appellate court in the dark” and presents nothing of substance to review. State v. Deprow, 937 S.W.2d 748, 751 (Mo.App.1997), quoted in Crews, 7 S.W.3d at 567.

Point I is well-taken; we cannot reach Movant’s other points until it is addressed. We reverse and remand for findings of fact and conclusions of law which comply with Rule 29.15(j). See Crews, 7 S.W.3d at 569.

RAHMEYER, P.J., and FRANCIS, J., concur.

      . Missouri Court Rules (2008).

      . To illustrate, the judgment reads:

        CLAIM 8(a)

      Movant alleges in this claim that trial counsel was ineffective by failing to file a motion to suppress pre-trial identification, identification at the Preliminary Hearing and in-court identification of Movant of [sic) the defendant. There was no error here, and the claim that defense counsel was ineffective in this regard is without merit.

        CLAIM 8(b)

      Movant alleges in this claim that trial counsel was ineffective by failing to call William Wren to testify at trial. There was no error here, and the claim that defense counsel was ineffective in this regard is without merit.

        CLAIM 8(c)

      Movant alleges in this claim that trial counsel was ineffective by failing to call Patsy Wren to testify at trial. There was no error here, and the claim that defense counsel was ineffective in this regard is without merit.
      This pattern is repeated nine more times, followed by a half-page "Summary” which did not specifically address any claim, but inaccurately faulted Movant for (1) not calling trial counsel to testify, and (2) voluntarily dismissing his direct appeal where, according to the motion court, many of Movant’s claims "would have been better addressed.” The State expressly concedes that "trial counsel did testify extensively at [Movantj's evidentia-ry hearing, contrary to the motion court’s indication,” and Movant did not voluntarily dismiss his direct appeal.

        . Crews, 7 S.W.3d at 568, cites five exceptions to the requirement for findings and conclusions. No exception applies here and the State does not claim otherwise.


source: Caselaw Access Project

author: KAREN KING MITCHELL, Judge.

license: Public Domain

text:
    Valerie VANCE, Appellant, v. L. Annette GRIGGS, David L. McCollum, and McCollum & Griggs, LLC, Respondents.
    No. WD 71664.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.

      Valerie A. Vance, Independence, MO, for Appellant.
    Steven J. Streen, Kansas City, MO, for Respondents
    Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

This is an appeal of two separate but related cases that were transferred to the same division of the circuit court for judicial efficiency. Although the motion to consolidate the cases was granted, the cases were never formally consolidated. There is only one judgment of the circuit court. The judgment has the case number 0616-CV29262, yet it purports to dismiss all of Appellant Valerie A. Vance’s causes of action, with prejudice, both in that case and in the companion case numbered 0716-CV08454. The first case filed with the circuit court, No. 0616-CV29262, Broadspire Services, Inc. v. L. Annette Griggs, et al., is an interpleader action naming L. Annette Griggs and Valerie A. Vance as defendants, wherein third party Broadspire paid into court attorneys’ fees and costs for disbursement. The second case, No. 0716-CV08454, Valerie A. Vance v. LaRea Annette Griggs, David L. McCollum, and McCollum & Griggs, LLC, is a petition seeking damages and an accounting for claims of conversion and breach of contract and also seeking punitive damages. The circuit court dismissed Vance’s claims in both actions, finding that Vance’s petition failed to allege compliance with Missouri Supreme Court Rule 4 — 1.5(e), and thus failed to state a claim. Vance claims that the dismissals were in error. We affirm the judgment of the circuit court in part, reverse in part, and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

Respondent Griggs was admitted to practice law in the State of Missouri on October 15, 2001. Upon her admission to the bar, Griggs entered into an agreement with Appellant Vance, who had been practicing law for several years, to practice law together. The newly formed law firm was called Griggs & Vance, LLC (“GV”). Griggs and Vance agreed to share equally the profits from the operation of the firm, with the exception of those originating from several of Vance’s works in progress.

In October of 2003, Respondent McCol-lum joined the law firm at Griggs’s request. The new firm was called McCol-lum, Griggs & Vance, LLC (“MGV”). The members agreed that they would contribute all works in progress to the new firm and share equally in all expenses and revenues.

On March 12, 2004, McCollum and Griggs notified Vance that they were withdrawing from the firm, effective March 31, 2004, and opening their own firm. Their new firm was named McCollum & Griggs, LLC (“MG”). Vance alleged in her petition in the circuit court that, at this time, McCollum and Griggs improperly removed firm assets, property, client files, and revenues, and interfered with Vance’s valid attorney’s liens by unlawfully and improperly providing hold harmless agreements to third-party payors to keep Vance from being named on checks.

On October 23, 2006, Broadspire, a corporation that administers workers’ compensation cases on behalf of employers and insureds, filed the interpleader action in the circuit court. Griggs (and/or the various law firms in existence during the relevant time period)' had performed legal services for an employee claimant, and Broadspire was attempting to disburse the attorney’s fees portion of the award of compensation that was due under the agreement between Griggs (and/or the various law firms) and the claimant. Vance filed a claim in the interpleader action on March 7, 2007. Vance’s claim stated, “Attorney Valerie Vance makes her claim to no less than one-half the amount of the attorney’s fees and costs expended.” Griggs filed a claim on March 15, 2007. On March 29, 2007, Vance moved for an order joining McCollum individually and the MG law firm; the motion was granted.

On April 2, 2007, Vance filed her petition for damages and for an accounting in the circuit court. Vance claimed that Griggs and McCollum, with the aid of the MG firm, improperly converted MGV assets and property, including client files, and fees. Vance also claimed that Griggs and McCollum breached their contract with Vance “by failing to properly pay to Plaintiff Vance her proportionate share of MGV revenues, and by failing to account to Plaintiff Vance for her share of MGV assets” and that they interfered with Vance’s attorney’s liens on fees due to her under the MGV membership agreement. Vance sought an accounting, compensatory damages, and punitive damages.

Vance’s action was transferred to the division of the circuit court that held the interpleader action, but the cases were never formally consolidated. On October 7, 2008, the Honorable Kelly J. Moorhouse, who presided over the division of the circuit court holding both cases since the transfer, passed away, and the Honorable Joel May was subsequently assigned to the division.

Griggs, McCollum, and MG filed an answer and several amended answers to Vance’s petition. Each answer stated, as an affirmative defense, that Vance’s petition failed to state a claim upon which relief could be granted. None of the answers in the record provided to this court specified why Vance’s petition failed to state a claim. After filing their fourth amended answer, and before Vance’s responsive pleading was due but after the deadline for amending pleadings had passed, Griggs, McCollum, and MG filed a motion to dismiss Vance’s causes of action in both cases pursuant to Rule 55.27(b). The motion to dismiss, for the first time, claimed that, because Vance, Griggs, and McCollum were no longer all part of the same firm, Rule 4-1.5(e) applied and that, therefore, Vance’s petition must have asserted compliance with Rule 4-1.5(e) to have stated a claim upon which relief could be granted.

In her opposition to the motion to dismiss, Vance countered that Rule 4-1.5(e) did not apply to her agreement with Griggs and McCollum, because the three lawyers were members of the same firm when the agreement was made. Vance’s response also claimed that, even if Rule 4-1.5(e) applied to the agreement, Vance’s petition was also for conversion of MGV assets and for an accounting and punitive damages, which were not precluded by any failure to comply with Rule 4-1.5(e). Alternatively, Vance requested leave to amend her petition.

On September 15, 2009, the circuit court entered a single judgment under case number 0616-CV29262, which was the Broadspire interpleader action. The judgment purported to dismiss, with prejudice, Vance’s petition and her interpleader claim. It also denied Vance’s request to amend her petition. The judgment did not disburse the funds from the interpleader action. This appeal follows.

Standard of Review

We review the trial court’s grant of a motion to dismiss de novo. Adams v. One Park Place Investors, LLC, 315 S.W.3d 742, 753 (Mo.App. W.D.2010) (citing Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008)). “When [an appellate cjourt reviews the dismissal of a petition for failure to state a claim, the facts contained in the petition are treated as true and they are construed liberally in favor of the plaintiff ].” Lynch, 260 S.W.3d at 836. “If the petition sets forth any set of facts that, if proven, would entitle the plaintiff ] to relief, then the petition states a claim.” Id.

Legal Analysis

For her sole point on appeal, Vance argues that the circuit court erred in dismissing her petition, without granting her leave to amend, and in dismissing her claim to the interpleaded funds. She argues that Rule 4-1.5(e), the basis for the circuit court’s dismissal of her claims, does not apply because the three lawyers were all members of the same firm at the time the agreement was entered.

Rule 4-1.5(e) provides:

A division of fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
(2) the client agrees to the association and the agreement is confirmed in writing; and
(3) the total fee is reasonable.

“ ‘The rules of professional conduct have the force and effect of judicial decision. Accordingly, Rule 4-1.5 has the force and effect of law in Missouri.’ ” Law Offices of Gary Green, P.C. v. Morrissey, 210 S.W.3d 421, 425 (Mo.App. S.D.2006) (quoting Londoff v. Vuylsteke, 996 S.W.2d 553, 557 (Mo.App. E.D.1999)).

The Green case cited above and relied upon by Respondents in this case, stated that, until that decision, Rule 4-1.5(e) had “only been interpreted in instances where attorneys dividing a fee are in different firms at all times during the representation of a particular client.” Id. However, in Green, the fee-sharing agreement at issue had been made after the separation of the departing attorney from his former firm. Id. at 423. The court noted this fact and also found persuasive two non-binding informal advisory opinions of the Missouri Legal Ethics Counsel. Id. at 425 n. 5. It then concluded that the agreement was, in fact, one made between lawyers from two different firms and thus it needed to comply with Rule 4-1.5(e) to be enforceable. Id. at 425. Because even the proposed amended petition submitted by the petitioner in Green did not allege facts showing compliance with Rule 4-1.5(e), the dismissal of the plaintiffs petition, which had been entered without having granted leave to amend, was affirmed. Id. at 425-26.

Subsequent to the Green case, Rule 4-1.5 was amended, perhaps in response to the Green decision. The change in the rule was published in the October 2007 supplement to the 2007 edition of the Missouri Supreme Court Rules. Although the change to the relevant portion of the rule itself was minor, Comment [8] was added, which states, “Rule 4-1.5(e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.” Subsequent to this change in the rule, it is clear that any attorney’s fees and costs which could properly be attributed to work that a departing attorney had done prior to the separation would not be subject to the requirements of Rule 4-1.5(e).

Vance’s petition states claims for relief sufficiently to withstand Respondents’ motion to dismiss. Specifically, Vance’s petition states, “At the time that McCollum and Griggs withdrew from MGV, they converted MGV assets, and failed to properly account to Plaintiff Vance regarding revenues received from cases which were handled by MGV.” By referencing matters handled by a firm that ceased to exist upon separation of the attorneys, it appears that the petition addresses fees generated by work done before separation. The petition continues, “As part of their conversion of MGV, LLC assets ... McCollum and Griggs seized control of certain files, and ... proceeded to thereafter receive revenues on such matters, without properly accounting to Plaintiff Vance for her share of such revenues.” This allegation is broad enough to include revenues received after separation for work performed before separation. Therefore, Vance’s petition need not allege compliance with Rule 4-1.5(e) to state a cause of action with respect to any work that was done for MGV clients or fees that were earned before the separation.

As to work done by McCollum or Griggs after April 1, 2004, and any fees earned therefrom, we find the informal advisory opinions of the Missouri Ethics Counsel, cited above, to be helpful. Both opinions indicate that any work done for former clients of the law firm after the separation must be done in compliance with Rule 4-1.5(e) if the fees are to be shared. See Mo. Legal Ethics Counsel, Informal Ops. 20020003 (2002), 20000219 (2000). Because Rule 4-1.5(e) had not been widely used with attorneys formerly of the same firm, see Green, 210 S.W.3d at 425, there is no authority as to how disputes regarding the proportion of fees earned before versus after the separation are to be managed. But presumably it is done by an accounting, and fees are shared “in proportion to the work performed on each case while [the departing a]ttorney[s were] member[s] of the firm.” Mo. Legal Ethics Counsel, Informal Op. 20000219 (2000). Because Rule 4-1.5(e) does not apply to any fees earned before the separation of McCollum and Griggs from MGV, and Vance’s petition requests damages for injuries she allegedly sustained by losing her portion of those fees, as well as other “MGV assets,” the circuit court erred in dismissing Vance’s petition for failure to state a claim.

The circuit court’s judgment also dismissed Vance’s claim to the interplead-ed Broadspire fees. “In interpleader actions, each claimant is regarded as a plaintiff and each bears the burden of proof on his or her respective claims.” Osborn v. Home Ins. Co., 914 S.W.2d 35, 37 (Mo.App. E.D.1996); see also Century 21 Al Burack Realtors v. Zigler, 628 S.W.2d 915, 916-17 (Mo.App. E.D.1982). A pleading asserting one’s claim to interpleaded funds, it follows, should be set forth in a manner similar to a petition. In Missouri, a petition requires a “short and plain statement of the facts showing that the pleader is entitled to relief’ and “a demand for judgment for the relief to which the pleader claims to be entitled.” Rule 55.05. Facts showing that the claimant is entitled to relief must be asserted; a mere conclusion of law “does not aid the pleading, is no allegation at all, is not enough to state a cause of action, and will be disregarded in determining the sufficiency of the facts alleged.” 71 C.J.S. Pleading § 16 (2000). Trial judges have no discretion to ignore the fact pleading requirements of the Supreme Court Rules. State ex rel. Harvey v. Wells, 955 S.W.2d 546, 547 (Mo. banc 1997).

In Vance’s pleading, she requests “no less than one-half the amount of the attorney’s fees and costs expended.” That is the extent of Vance’s claim. Vance does not allege that she and Griggs, the other original defendant in the interpleader action, were members of the same law firm at any relevant time during the period in which the fees were earned. She also does not allege that any fee-sharing agreement between herself and any other members of either GV or MGV was made either before or after separation. Vance’s bare claim in the interpleader action “to no less than one-half the amount of the attorney’s fees and costs” at issue in the Broadspire matter is insufficient as a matter of law.

At oral argument, Vance maintained that the Respondents’ claim in the interpleader action, which did admit that Vance and Griggs were members of the same law firm until March 31, 2004, and, indirectly, that approximately five percent of the work done and $52.07 of the expenses incurred in the action giving rise to the Broadspire funds predated the dissolution of MGV, served to cure any alleged defects in her own pleading. Vance is correct that facts alleged in an opposing party’s responsive pleading can sometimes cure defective factual allegations in the original pleading. See Valleroy v. S. Ry. Co., 403 S.W.2d 553, 556 (Mo.1966). However, when an initial pleading, in this case a claim to the interpleaded funds, wholly fails to .state a cause of action, the defect cannot be cured by another party’s pleading, the presentation of evidence, or even by a subsequent verdict. See, e.g., Zigler, 628 S.W.2d at 917; Chuning v. Calvert, 452 S.W.2d 580, 585 (Mo.App.1970) (a pleading that fails to state a cause of action is “insufficient to call into being the exercise of the court’s jurisdiction” and will not be cured even by a verdict in favor of the pleader).

Because Vance’s claim in the interpleader action failed as a matter of law to allege any facts establishing her entitlement to the funds at issue, the circuit court did not err in dismissing Vance’s claim to said funds. The court’s order, however, apparently fails to disburse the funds at all. On remand, the circuit court is directed to correct the judgment to disburse the inter-pleaded funds.

Conclusion

Because Rule 4-1.5(e) does not apply to any attorney’s fees earned by a departing member of a law firm prior to her separation from the firm, even if the fees are received after the separation, the circuit court erred in dismissing Vance’s petition for failure to state a claim to the extent that it states a claim for fees earned prior to separation and for an accounting regarding such fees and assets of MGV. However, the circuit court did not err in dismissing Vance’s claim in the interpleader action. Therefore, we affirm the judgment of the circuit court in part, reverse in part, and remand for further proceedings consistent with this opinion.

JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER, Judge, concur.

      . Griggs and McCollum filed a second motion to dismiss on June 15, 2009, but this motion was denied as moot by the circuit court.

      . Respondents’ "motion to dismiss Appellant’s brief” is hereby denied.

      . Missouri Legal Ethics Counsel, Informal Opinion 20020003 (2002) explains that in an agreement where the exiting partner in a firm agreed to divide client fees evenly between himself (or herself) and his former firm, the arrangement should comply with the terms of the rule. Missouri Legal Ethics Counsel, Informal Opinion 20000219 (2000) also arrives at this conclusion.

      . Because the change to Rule 4-1.5(e) itself was minor, we presume that the comment was added merely to clarify the proper application of the rule and was not intended as a substantive change in the rule. Therefore, the comment may aid our assessment of petitions filed before the rule change took effect, as well as those filed afterward.

      . At oral argument, Respondents asserted that any fees earned for work performed before the separation could only be shared on a quantum meruit basis with Vance receiving only the fees for the portion of the work that Vance herself performed. Respondents cite no authority for this proposition. The question presented in Mo. Legal Ethics Counsel Informal Op. 20000219 (2000) states that "[i]t is Attorney’s understanding that the former firm cannot assert liens for a percentage of the fees, but that the former firm must assert the liens under quantum meruit and prove time spent on the cases." (Emphasis added.) The answer does not affirm this, however, and Respondents provide no reason why the portion of the fees corresponding to work performed before the separation should not be divided as per the agreement existing at the time.


text:
    K.M.D., Respondent, v. Theodore M. ALOSI, Appellant.
    No. WD 71832.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.

      J. Armin Rust, Richmond, MO, for Appellant.
    K.M.D. Respondent, pro se.
    Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

This is an attorney’s fees case. The issue is whether the circuit court abused its discretion in awarding the respondent $2,000 in attorney’s fees that she incurred in conjunction with a previous appeal. We hold that there was no substantial evidence to support the court’s award of attorney’s fees and that the court abused its discretion in awarding them. Therefore, we reverse and remand for further proceedings.

Facts and Procedural Background

On September 17, 2007, Respondent K.D. filed a petition for an order of protection against Appellant Theodore M. Alosi. The Circuit Court of Carroll County, the Honorable Kevin L. Walden presiding, granted an ex parte order of protection, and then, on October 30, 2007, entered judgment for a full order of protection. Almost a year later, on October 20, 2008, the court entered judgment extending the duration of the order of protection for six months. Alosi appealed the court’s judgment of October 20, 2008. Since the six-month extension of the order of protection had expired before the appeal was submitted, we dismissed the appeal as moot. K.D. v. Alosi 292 S.W.3d 616, 616-17 (Mo.App. W.D.2009).

While the appeal was pending, K.D. filed a motion in the circuit court for her appellate attorney’s fees. After we dismissed the appeal, the circuit court held a hearing on the motion. At the hearing, K.D. testified that she could not afford to pay her attorney’s fees because Alosi was approximately $30,000 behind in his child support and that, as a result, she spent all of her funds in caring for their children. She testified that she made forty-five dollars an hour and averaged thirty hours a week. Alosi had told K.D. that he intended to ruin her financially through litigation. K.D. presented no evidence of Alosi’s financial resources, apart from noting that he had recently made a lump-sum child-support payment of $6,000. K.D. owed her attorney $7,564.56. The circuit court granted the motion and awarded K.D. $2,000 in attorney’s fees. This appeal follows.

Standard of Review

In a court-tried case, Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), governs our standard of review. Afridi v. Auman, 301 S.W.3d 595, 597 (Mo.App. W.D.2010). Accordingly, we will affirm the circuit court’s judgment unless it: (1) is unsupported by substantial evidence; (2) is against the weight of the evidence; (3) misstates the law; or (4) misapplies the law. Murphy, 536 S.W.2d at 32. However, on the specific issue of an attorney’s fees award, we will reverse only if the court abused its discretion, Afridi, 301 S.W.3d at 597, or lacked the authority to award them. Roller v. Steelman, 297 S.W.3d 128, 131 (Mo.App. W.D.2009).

The determination of reasonable attorney’s fees is in the sound discretion of the trial court. This determination shall not be reversed unless the amount awarded is arbitrarily arrived at or is so unreasonable as to indicate indifference and a lack of proper judicial consideration. The trial court is considered an expert on the issue of attorney’s fees such that, in the absence of a contrary showing, the trial court is presumed to know the character of the attorney’s services rendered in duration, zeal, and ability.

Realty Res., Inc. v. True Docugraphics, Inc., 312 S.W.3d 393, 400-01 (Mo.App. E.D.2010) (internal citations omitted).

Legal Analysis

In his sole point on appeal, Alosi argues that the circuit court erred in awarding K.D. her appellate attorney’s fees in that there was insufficient evidence to show the financial conditions of the parties. We agree.

The circuit court has the authority to award appellate attorney’s fees if the party seeking them files a motion in the circuit court before the appellate court issues its mandate. Amburn v. Aldridge, 296 S.W.3d 32, 34-35 (Mo.App. W.D.2009); Meierer v. Meierer, 876 S.W.2d 36, 37 (Mo.App. W.D.1994). Here, K.D. filed her motion in the circuit court pursuant to section 455.075.

In adult abuse cases, “[t]he [circuit] court may order a party to pay a reasonable amount to the other party for attorney’s fees.... The court shall consider all relevant factors, including the financial resources of both parties [.] ” § 455.075 (emphasis added). “The language of this statute essentially mirrors the language of § 452.355 of the Dissolution of Marriage Act.... It seems clear that the legislature intended the same requirements be satisfied before the trial court could award attorney’s fees.” Minor v. Minor, 901 S.W.2d 163, 166 (Mo.App. E.D.1995). Therefore, there must be evidence of the parties’ financial resources in order for the circuit court to award attorney’s fees under these statutes. See Hihn v. Hihn, 237 S.W.3d 607, 609-10 (Mo.App. E.D.2007) (so holding with respect to section 452.355). Under the analogous section 452.355, “a court must know what debts each party owes and what non-employment income each party has before it can determine either need or ability to pay.” Barancik v. Meade, 106 S.W.3d 582, 594 (Mo.App. W.D.2003). That the court did not mention the financial resources of the parties in its judgment, however, does not indicate that the court failed to consider them. Todd v. Todd, 772 S.W.2d 14, 15 (Mo.App. E.D.1989). Rather, we will look to the record to see if sufficient evidence was presented to allow the finder of fact to consider the financial resource of each party.

The circuit court abused its discretion in awarding K.D. her appellate attorney’s fees because there was insufficient evidence of the parties’ financial resources. When the circuit court asked KD.’s counsel what evidence there was of Alosi’s financial resources, she stated only that Alo-si had recently made a lump-sum child-support payment of $6,000. However, there was no evidence regarding where he had procured these funds. This evidence, standing alone, does not prove Alosi’s ability to pay K.D.’s attorney’s fees. It is true that Alosi had threatened to ruin K.D. financially by “keep[ing][her] in court for as long as possible,” which suggests that Alosi had the ability to pay attorney’s fees and that K.D. did not. Nevertheless, in Barancik, 106 S.W.3d at 594, there was evidence of a similar threat, and we held that such did not compensate for the lack of evidence regarding the parties’ financial resources.

We are aware that dissolution proceedings differ from adult abuse proceedings in that, in the former, the court will necessarily have before it a more complete picture of the parties’ financial resources. See § 452.330 (requiring the court to enter an order dividing the marital property after considering numerous economic factors and conditions). Thus, it is less burdensome to require a substantial showing of the parties’ financial resources in proceedings under the Dissolution of Marriage Act, because such evidence is usually already part of the record. The same cannot be said for proceedings under the Adult Abuse Act, because the financial resources of the parties are not ordinarily relevant until the victim moves for attorney’s fees. Nevertheless, the legislature has established the same standard under both acts, and we are bound by the standard it established. While differences in the two types of proceedings may influence the quantum of proof the trial court requires to exercise its discretion to award attorney’s fees, the threshold for making such an award remains the same. See Cunningham v. Cunningham, 673 S.W.2d 478, 480 (Mo.App. E.D.1984) (holding that the time constraints on proceedings under the Adult Abuse Act may influence a trial court’s determination of the quantum of proof it requires to make a maintenance award under the Act, but the standard for making a submissible case remains uniform). Therefore, the threshold of substantial evidence must be met in order to trigger the trial court’s authority to exercise its discretion to award attorney’s fees in an adult abuse case.

In this case, K.D. did not submit substantial evidence of the parties’ financial resources, and therefore the court lacked the authority to award attorney’s fees.

However, in the interest of justice, and in light of the facts of this case, we remand to the trial court for further proceedings on the issue of K.D.’s attorney’s fees on appeal. See In re the Marriage of Sumners, 677 S.W.2d 435, 436 (Mo.App. S.D.1984) (claim for attorney’s fees pursuant to section 452.355 was remanded for further proceedings when there was no evidence of any relevant factor other than the wife’s financial history) (cited with approval in W.K.B. ex rel. S.M.B. v. A.T.W., 810 S.W.2d 601, 607 (Mo.App. E.D.1991)).

Conclusion

The circuit court cannot award attorney’s fees under section 455.075 without substantial evidence of the parties’ financial resources. Here, the circuit court lacked such evidence. Accordingly, the circuit court abused its discretion, and we reverse its judgment and remand for further proceedings on the issue of KD.’s attorney’s fees.

JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA, Judge, concur.

      . On appeal from a court-tried case, we review the facts in the light most favorable to the judgment. Wallace v. Ferreira, 830 S.W.2d 571, 573 (Mo.App. W.D.1992).

      . We note that a motion for appellate attorney’s fees may be filed in the appellate court. See Missouri Court of Appeals, Western District, Special Rule XXIX. It is possible that K.D. could have been entitled to appellate attorney’s fees under Rule 84.19, even without evidence of financial resources, if K.D. could have demonstrated that the appeal was frivolous.

      . Statutory citations are to RSMo 2000, as updated through the 2009 cumulative supplement.


text:
    Joe Bob LAKE, as Personal Representative of the Estate of Julia Lake and as an Individual, Appellant, v. Frank B.W. MCCOLLUM, Respondent.
    No. WD 72232.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.

      Mick Lerner, Overland Park, KS, for Appellant.
    Michael D. Moeller and Michael J. Kleff-ner, Kansas City, MO, for Respondent.
    Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   KAREN KING MITCHELL, Judge.

This is a post-judgment interest case. The issue is whether post-judgment interest runs from a judgment that awarded no money to the plaintiff when the judgment is reversed on appeal with instructions to enter judgment for the plaintiff pursuant to the jury’s verdict. We hold that it does not. Therefore, we affirm.

Facts and Procedural Background

In 2001, Julia and Joe Bob Lake sued Dr. Sharon Prohaska for medical malpractice and loss of consortium. In 2005, the Circuit Court of Jackson County, the Honorable Preston Dean presiding, held a jury trial on Lake’s claims. Prohaska moved for directed verdict at the close of plaintiffs evidence and again at the close of all evidence. The trial court deferred ruling on both motions. The jury rendered a verdict in favor of Lake for $125,000. On September 12, 2005, the circuit court entered what it denominated as a “judgment.” The “judgment” reflected the jury’s verdict but stated that it would resolve Prohaska’s motions for directed verdict with the post-trial motions.

Thirty-four days after the court had entered the “judgment,” Prohaska filed a motion for judgment notwithstanding the verdict (“JNOV”). Lake argued that the motion should be denied because: (1) it failed on the merits; and (2) Prohaska had not filed it within thirty days of the trial court’s “judgment” of September 12, 2005. See Rule 72.01.

On January 6, 2006, the court granted Prohaska’s motion for JNOV and, accordingly, entered judgment for Prohaska. In its January 6, 2006 judgment, the court found that the September 12, 2005 “judgment” was a nullity because it deferred ruling on Prohaska’s motions for directed verdict and thus did not decide all issues, as a true judgment is required to do. The court stated that the September 12, 2005 docket entry should have been entitled “Trial Minutes,” not “judgment.”

Lake appealed the January 6, 2006 judgment. While the appeal was pending, Dr. Sharon Prohaska died. A suggestion of death was then filed, and we dismissed Lake’s appeal for noncompliance with Rule 52.18. The Supreme Court of Missouri granted transfer.

There were two issues on appeal: (1) whether Prohaska had timely filed her motion for JNOV; and (2) if she had, whether the circuit court erred in granting it. The Supreme Court affirmed the January 6, 2006 judgment with respect to the first issue. That is, it held that the September 12, 2005 docket entry (which was denominated “judgment”) was not a judgment and that therefore Rule 72.01 did not require Prohaska to file her motion for JNOV within thirty days of its entry. Lake v. McCollum, 257 S.W.3d 614, 616 (Mo. banc 2008) (“Lake I”). The Supreme Court retransferred the appeal to this court to decide the second issue. Id. We reversed that portion of the January 6, 2006 judgment that granted Prohaska’s motion for JNOV on the merits. Lake v. McCollum, 295 S.W.3d 529, 537 (Mo.App. W.D.2009) (“Lake II”). Further, we remanded to the circuit court to enter judgment for Lake in accordance with the jury’s verdict. Id.

The circuit court entered judgment for the principal amount initially awarded by the jury, which Prohaska paid and which is no longer at issue. However, Lake argued below that he was entitled to interest on the principal amount, running from January 6, 2006 (the date the trial court granted the JNOV and entered judgment for Prohaska) forward. Prohaska argued that no post-judgment interest could apply until there was a judgment for the plaintiff, i.e., that post-judgment interest would not begin to run until the circuit court, on remand, entered judgment pursuant to this court’s mandate. On March 4, 2010, the circuit court, the Honorable Charles At-well presiding, entered a judgment for post-judgment interest, running from November 17, 2009, the date our mandate issued in Lake II. Lake appeals.

Standard of Review

Determining the date from which post-judgment interest is due is a question of law that we review de novo. Lindquist v. Mid Amer. Orthopaedic Surgery, Inc., 224 S.W.3d 593, 594-95 (Mo. banc 2007). In reviewing an issue de novo, we do not defer to the circuit court. Jablonski v. Barton Mut. Ins. Co., 291 S.W.3d 345, 349 (Mo.App. W.D.2009).

Legal Analysis

Post-judgment interest is governed by section 408.040. In 2005, the legislature amended that section. The amendments apply only to actions filed after August 28, 2005. Lindquist, 224 S.W.3d at 595 n. 2. Since Lake filed his petition in 2001, the pre-amendment version of section 408.040 applies. It provided as follows: “[ijnterest shall be allowed on all money due upon any judgment or order of any court from the day of rendering the same until satisfaction be made.” § 408.040.

Under this statute, post-judgment interest runs from the date the circuit court entered judgment and not from the date the jury entered its verdict. Lind-quist, 224 S.W.3d at 595; Kan. City Power & Light Co. v. Bibb & Assocs., 197 S.W.3d 147, 161 (Mo.App. W.D.2006); Johnson v. BFI Waste Sys. of N. Am., Inc., 162 S.W.3d 127, 129 (Mo.App. E.D.2005).

Such was not always the law. Section 510.340 and Rule 78.04 formerly provided that “judgment shall be entered as of the day of the verdict.” Johnson, 162 5.W.3d at 130. Reading that language in conjunction with section 408.040, courts held that, for the purposes of accruing post-judgment interest, a “judgment” was automatically entered as of the date of the jury’s verdict. Stacy v. Truman Med. Ctr., 836 S.W.2d 911, 927-29 (Mo. banc 1992); Crystal Tire Co. v. Home Serv. Oil Co., 507 S.W.2d 383, 384 (Mo.1974). Nevertheless, the Supreme Court amended Rule 78.04 in 1995, deleting the language “judgment shall be entered as of the day of the verdict,” and the legislature subsequently repealed section 510.340. John son, 162 S.W.3d at 130. As noted, this amendment effected a change in the law for the purposes of determining when post-judgment interest accrues: from 1995 onward, it accrues on the date the trial court entered judgment, not the day of the jury’s verdict. Kan. City Power & Light Co., 197 S.W.3d at 160-61; Johnson, 162 S.W.3d at 129-30.

I. Post-judgment interest did not run from the judgment of January 6, 2006, because no money was due from that judgment.

Lake argues that, under section 408.040, post-judgment interest runs from the judgment of January 6, 2006. We disagree.

We must give a statute its plain and ordinary meaning, and, if the language is unambiguous, our inquiry ends there. Brown ex rel. K.R.P. v. Penyweit, 219 S.W.3d 829, 835 (Mo.App. W.D.2007). The relevant version of section 408.040 provided as follows: “[ijnterest shall be allowed on all money due upon any judgment or order of any court from the day of rendering the same until satisfaction be made.” § 408.040.1 (emphasis added). The italicized language is unambiguous: if no money is due upon a judgment, then post-judgment interest does not run on it. As explained in Johnson,

Notably, Section 408.040.1 ... specifies that the interest shall be allowed on money which is due upon a judgment. The statute’s focus is clearly upon identifying the judgment which creates a debt or right to collection. As the Supreme Court has held, “due,” in the context of Section 408.040.1, means “time for payment.” Kennard v. Wiggins, 353 Mo. 681, 183 S.W.2d 870, 872 (Mo.1944). Where, “under said judgment there could be no process for collection of money,” such judgment does not trigger the running of post-judgment interest. Id.

162 S.W.3d at 129. Since no money was due upon the judgment of January 6, 2006, post-judgment interest did not run on it. See id.

Lake cites cases in which post-judgment interest was allowed to run from the jury’s verdict when the trial court erroneously granted the defendant’s motion for JNOV. Stacy, 836 S.W.2d 911; Home Ins. Co. v. Woods, 274 S.W. 520, 521 (Mo.App.1925). Those cases, however, were decided before the amendments to Rule 78.04 took effect. As explained above, it is settled law that the amendments to Rule 78.04 changed the date of post-judgment interest accrual from the date of the jury’s verdict to the date of the trial court’s entry of judgment. Kan. City Power & Light Co., 197 S.W.3d at 160-61; Johnson, 162 S.W.3d at 129-30; see also Lindquist, 224 S.W.3d at 595 (so holding without discussion of the amendments to Rule 78.04). Thus, in the cases relied upon by Lake, there was “money due upon [a] judgment,” section 408.040, on the date of the jury’s verdict because, at the time, the day of the verdict was, ipso facto, the date of the judgment. See Stacy, 836 S.W.2d at 928. By contrast, there was no “money due” upon the judgment of January 6, 2006.

Lake also relies heavily on Sebastian County Coal & Mining Co. v. Mayer, 310 Mo. 104, 274 S.W. 770 (1925); however, that case is also distinguishable. In Sebastian, there were three defendants: Fidelity Fuel Co. (“Fidelity”), John Mayer, and Mayer Coal Company. Id. The plaintiff had entered into a lease with Fidelity Fuel Co., and it was undisputed that the latter had defaulted on the lease. Sebastian County Coal & Mining Co. v. Fidelity Fuel Co., 310 Mo. 158, 274 S.W. 774, 775-76 (1925). The only issue was whether John Mayer and Mayer Coal Company (collectively, “Mayer defendants”) were liable for Fidelity’s lease obligation. John Mayer had acquired all of the assets of Fidelity Fuel Co., and the plaintiff argued that the Mayer defendants had also guaranteed the lease obligation. Sebastian, 274 S.W. at 770-71. The trial court entered judgment against Fidelity, Fidelity Fuel Co., 274 S.W. at 775, but it also found that the Mayer defendants were not liable on Fidelity’s lease. Sebastian, 274 S.W. at 770. Our Supreme Court reversed, finding that the Mayer defendants had guaranteed the lease payments. Id. at 774. It instructed the trial court to modify the judgment that the trial court had previously entered against Fidelity to include a finding that the Mayer defendants were also liable on the lease, and it noted that post-judgment interest should run from the date of the original judgment. Id.

Sebastian is distinguishable because, in that case, there was a judgment from which money was due. See Fidelity Fuel Co., 274 S.W. at 775. The issue was simply whether the lessee’s successor in interest and his associated entity were also liable on the lease as guarantors — that is, whether they should also be included as debtors to the same judgment that the trial court had previously entered. Sebastian, 274 S.W. at 774 (“[T]he circuit court [shall] modify its judgment as to make [the Mayer defendants] liable along with the Fidelity Fuel Company, for the amount adjudged to be due plaintiff.”). As noted, here, there was no money due from the judgment of January 6, 2006, whether from Prohaska or from any party with whom Prohaska was in privity. Accordingly, Sebastian does not apply to the facts of this case.

No money was due from the judgment of January 6, 2006, and therefore post-judgment interest did not run from that date. § 408.040.

II. Post-judgment interest did not run from the docket entry of September 12, 2005 because, although it was denominated “judgment,” it was not a judgment.

Lake also argues that post-judgment interest should run from the docket entry of September 12, 2005, because it was a “judgment” or “order” under section 408.040. We disagree.

Post-judgment interest runs from the date the circuit court entered judgment. Lindquist, 224 S.W.3d at 595; Kan. City Power & Light Co., 197 S.W.3d at 161; Johnson, 162 S.W.3d at 129. The Supreme Court of Missouri has already held that the docket entry of September 12, 2005, was not a judgment because it did not decide all issues of the case. Lake I, 257 S.W.3d at 616. In the docket entry of September 12, 2005, the circuit court specifically stated that it would decide the motions for directed verdict at a later date. Subsequently, the court stated that the docket entry of September 12, 2005, was a “nullity” and that it should have been denominated “Trial Minutes.” Thus, that the docket entry of September 12, 2005, was not a judgment is the law of this case, see id., and, even if it were not, we would still hold that it was not a judgment. See Brooks v. State, 242 S.W.3d 705, 708 (Mo. banc 2008) (“A final judgment disposes of all issues as to all parties, leaving nothing for future determination.”).

Lake urges us to hold that post-judgment interest ran from the docket entry of September 12, 2005, because, even though it was not a judgment, it was at least an “order” as contemplated by section 408.040. See § 408.040 (“Interest shall be allowed on all money due upon any judgment or order ....”) (emphasis added). We decline to do so for two reasons. First, no money is due upon an interlocutory order. State ex rel. Lumber Mut. Ins. Co. v. Ohmer, 131 S.W.3d 872, 874 (Mo.App. E.D.2004). Thus, while we agree that the docket entry of September 12, 2005, was an “order,” see Rule 74.02, it was not an order upon which money was due, see Ohmer, 131 S.W.3d at 874, and therefore it did not trigger section 408.040. Second, to hold that post-judgment interest runs from a mere order would be to overrule Lindquist, 224 S.W.3d at 595, which held that post-judgment interest under section 408.040 runs only upon a judgment. We will not (and cannot) do so. Mo. Const, art. V, § 2.

Conclusion

No money was due upon the judgment of January 6, 2006, and therefore post-judgment interest did not run on it. The docket entry of September 12, 2005, was not a judgment, and therefore post-judgment interest did not run on it. Accordingly, we affirm the circuit court’s judgment.

JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA, Judge, concur.

      . Joe Bob Lake pursues this appeal on behalf of himself and as a personal representative of Julia Lake, who is now deceased. This opinion will refer to the appellants collectively as "Lake."

      . Frank B.W. McCollum is the respondent here on behalf of Prohaska, who is now deceased. This opinion will hereafter refer to the respondent and Prohaska, in her capacity as a litigant, collectively as "Prohaska.” We will use Dr. Sharon Prohaska’s full name when speaking of her as an individual.

      .Rule citations are to Missouri Supreme Court Rules (2010), unless otherwise indicated.

      . Prohaska does not cross-appeal the issue of awarding post-judgment interest from the date of our mandate as opposed to the date of the circuit court's judgment for the plaintiff pursuant to our mandate, and we therefore do not address that issue.

      . All citations to section 408.040 are to RSMo 2000, as updated through the 2001 cumulative supplement.

        . Citations to section 510.340 are to RSMo 2000.

      . The legislature did not repeal section 510.340 until 2005. However, when a Supreme Court rule and a statutory provision conflict, the former trumps, provided it relates to practice, procedure, or pleadings in the courts. State ex rel. Union Elec. Co. v. Barnes, 893 S.W.2d 804, 805 (Mo. banc 1995). Determining the date when a judgment is rendered is clearly a question of practice, procedure, or pleading, and therefore the relevant amendments to Rule 78.04 were effective in 1995, notwithstanding the continued existence of section 510.340 until 2005. See id. If there were any doubt that the relevant language of section 510.340 was inapplicable from 1995 onward, we settled it in Kansas City Power & Light Co., 197 S.W.3d at 160-61, as did the Eastern District of this court in Johnson, 162 S.W.3d at 130.

      . There were two appeals concerning the same facts, and our Supreme Court decided them on the same day. We will refer to the companion case as "Fidelity Fuel Co.”

      . Fidelity also argued that it was entitled to a setoff for certain property that the plaintiff had allegedly converted, but that issue is not relevant here. Fidelity Fuel Co., 274 S.W. at 775.

      . We also note that Sebastian was decided well before the Supreme Court amended Rule 78.04.

      . Though he makes this argument, Lake has not prayed for post-judgment interest for' the interval between the September 12, 2005 order and the January 4, 2006 judgment in favor of defendant.

      . In Missouri a written entry signed by the trial court is either a judgment, see Rule 74.01, or an order. Rule 74.02; Stacy, 836 S.W.2d at 928.


author: GARY D. WITT, Judge.

text:
    Larry TREASTER, et ux., Appellants, v. Steve BETTS, et al., Respondents.
    Nos. WD 71654, WD 71857.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.

      Patrick J. Berrigan and Joseph P. Mas-terson, Kansas City, MO, for appellants.
    R. Todd Ehlert, Edwin H. Smith and Sharon Kennedy, St. Joseph, MO, for respondents.
    Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, GARY D. WITT, Judge and KEITH MARQUART, Special Judge.
   GARY D. WITT, Judge.

Larry Treaster appeals the circuit court’s granting of Respondents’ Motion to Dismiss for lack of subject matter jurisdiction. For the reasons set forth herein, we reverse.

Statement of the Facts

Appellant, Larry Treaster (“Treaster”) was employed by MoKan Transit Concrete, Inc. (“MoKan”), as a concrete truck driver. On January 9, 2003, working at a job site pouring concrete, the motor that powered the concrete truck’s drum stopped operating, which caused the drum to stop turning. The truck was taken back to the MoKan’s location and some three hours later, after the concrete had begun to harden, Treaster’s supervisor, Steve Betts (“Betts”), directed Treaster to climb up onto the broken truck to pour water, through a hose, into the drum. At the same time that Treaster was on top of the drum of the broken concrete truck, the broken truck’s hydraulic lines were connected to the hydraulic lines of another operable truck in what is called a “crossover procedure.” This “cross-over procedure” caused the broken truck’s drum to rotate suddenly. Treaster was thrown from the concrete truck to the ground below, causing injury.

Treaster and his wife filed a personal injury action against Betts, Alan Jenson, and John and/or Jane Doe(s) (“Respondents”) in the Circuit Court of Buchanan County, Missouri, on January 3, 2008. The Petition alleged negligent acts by Respondents that caused or contributed to cause Treaster’s injuries. Respondents filed a Motion to Dismiss alleging that Treaster’s claims were pre-empted by the Missouri Workers’ Compensation Law, Section 287.120. On May 7, 2008, the circuit court dismissed the Petition finding that it lacked subject matter jurisdiction over this cause of action. Treaster now appeals.

Analysis

The circuit court granted Respondents’ Motion to Dismiss, relying on the case law in effect at the time of its ruling, on the grounds that it lacked subject matter jurisdiction over the cause because it fell under the exclusive purview of the Workers’ Compensation Law. See e.g., State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621, 623 (Mo. banc 2002).

The Missouri Supreme Court subsequently has made it clear that the Workers’ Compensation Law’s exclusivity defense is not a matter of subject matter jurisdiction but rather constitutes an affirmative defense. See McCracken v. Wal-Mart Stores E., LP, 298 S.W.3d 473 (Mo. banc 2009); see also Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249, 253-54 (Mo. banc 2009).

Missouri’s constitution is unequivocal in stating that circuit courts ‘have original jurisdiction over all cases and matters, civil and criminal.’ Mo. Const, art. V, sec 14 (emphasis added).... [T]o the extent that some cases have held that a court has no jurisdiction to determine a matter over which it has subject matter and personal jurisdiction, those cases have confused the concept of a circuit court’s jurisdiction-a matter determined under Missouri’s constitution-with the separate issue of the circuit court’s statutory or common law authority to grant relief in a particular case.

McCracken, 298 S.W.3d at 476-77. The Missouri Supreme Court in McCracken considered the same issue that is currently before us: whether the Workers’ Compensation Law divests the circuit court of subject matter jurisdiction over claims that fall within the statutes’ purview. Id. The unequivocal answer is no. ■ Id. The issue of whether a claim is covered by the workers’ compensation statutes “should be raised as an affirmative defense to the circuit court’s statutory authority to proceed with resolving his claim.” Id.

As an affirmative defense, that the claim is one covered by the Workers’ Compensation Law “must be pleaded and proved as provided in Rules 55.08 and 55.27. It is not a defense that may be raised in a motion to dismiss.” Id. at 479. A pre-trial dismissal based on an affirmative defense must be granted under the standards of summary judgment. Fortenberry v. Buck, 307 S.W.3d 676, 679 (Mo.App. W.D.2010).

The difference is significant, given that a more exacting standard applies to motions filed under Rule 74.04. In order to grant summary judgment based on section 287.120, the court must find that there is no genuine dispute as to the existence of each of the facts necessary to support the defendant’s affirmative defense.

Id. (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 381 (Mo. banc 1993)).

Fortenberry provides a succinct explanation of the path before the parties upon remand. See 307 S.W.3d at 679. Here, Respondents pled that the circuit court could not grant Treaster relief because of the exclusivity provision of the workers’ compensation statutes. In a motion for summary judgment based on that affirmative defense, Respondents have the burden to show there is no genuine issue of material fact in dispute with respect to the following elements: (1) Treaster’s claim is based on an accident arising out of and in the course of Treaster’s employment, id.-, see Section 287.120; (2) Respondents were acting as employees of MoKan, see Fortenberry, 307 S.W.3d at 679 (citing Bradford v. BJC Corp. Health Servs., 200 S.W.3d 173, 177 (Mo.App. E.D.2006)); and (3) Respondents were acting pursuant to a non-delegable duty that MoKan owed to its employees. Id. (citing State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 179 (Mo.App. E.D.1982)).

If Respondents meet this threshold, the burden will shift to Treaster. In order to avoid summary judgment, Treaster would need to show that there is a genuine issue of material fact as to whether Respondents’ conduct falls within an exception to co-employee immunity. For example, Treaster claimed below that Respondents’ conduct satisfies the “something more” exception to co-employee immunity. See Fortenberry, 307 S.W.3d at 679. Point One is Granted.

Because the case must be sent back to the trial court for further proceedings, Treaster’s Point Two on Appeal is moot and need not be addressed.

With respect to the appeal from Treaster’s second filed petition against Respondents, WD71857, Treaster has not briefed or argued that the trial court’s dismissal of that Petition was in error under the pending action and abatement by prior action doctrines. “[Allegations of error not briefed or not properly briefed shall not be considered in any civil appeal....” Rule 84.13(a). Moreover, “[a] question not presented in an appellant’s brief will be considered abandoned on appeal and no longer an issue in the case.” Lucky v. Sears Roebuck & Co., 950 S.W.2d 687, 689 (Mo.App. S.D.1997) (internal quotation omitted). Case # WD71857 is therefore dismissed.

Conclusion

Accordingly, we reverse and remand case number WD71654 with instructions to proceed consistent with the principles set forth in this opinion. Case number WD71857 is dismissed.

All concur.

      . The "drum” of a concrete truck is the part of the truck which stores the concrete and rotates.

      . All statutory citations are to RSMo 2000, as updated through the 2002 Cumulative Supplement, unless otherwise indicated.

      . Respondents suggest that the circuit court did not dismiss the case because it lacked subject matter jurisdiction but argues the court recognized that Treaster's exclusive remedy was provided by the Workers’ Compensation Law. A plain reading of the Judgment makes clear the circuit court concluded it lacked subject matter jurisdiction over the case because it did not find "something more" than mere negligence, which would have taken it out of the Workers’ Compensation Act.

      . The procedural history of this case is more extensive than what is recited above, but further detail is unnecessary for the resolution of the issue before us. Essentially, Treaster filed his first petition in this case on January 3, 2008. This first case is case #WD69794. Treaster appealed the circuit court’s grant of Respondents’ Motion to Dismiss in the first case, but this Court dismissed the appeal because the judgment was not final. See Treaster v. Betts, 297 S.W.3d 94, 96 (Mo.App. W.D.2009). On October 13, 2009, Treaster filed a voluntary dismissal of the additional parties, which previously had not been finally disposed of, and Treaster then filed his next Notice of Appeal with this Court on October 23, 2009, case designation #WD71654. While that appeal was pending, Treaster filed another petition with the Circuit Court of Buchanan County on May 1, 2009, in order to ensure the cause was re-filed within time-frames set forth in the Savings Statute. See Section 516.230. The circuit court in that new cause, WD71857, entered a Judgment of Dismissal under the pending action and abatement doctrines. Appellants appealed that ruling as well. This Court then consolidated both appeals (WD71654 and WD71857) under WD 71654 by order dated February 1, 2010.

      .Section 287.120.2 sets forth the exclusivity provision of the Workers’ Compensation Law and states: "The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his wife, her husband, parents, personal representatives, dependents, heirs or next kin, at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.”

      . "When the applicability of section 287.120 appears from the face of the petition, a defendant can also properly file a motion to dismiss for failure to state a claim upon which relief can be granted, see Rule 55.27(a)(6), or for judgment on the pleading pursuant to Rule 55.27(b) if the affirmative defense appears from the petition and other pleadings.” Fortenberry v. Buck, 307 S.W.3d 676, 679 n. 2 (Mo.App. W.D.2010). Such is not the case before us.

      . Fortenberry makes it clear that McCracken applies to cases pending on appeal at the time it was decided. Both parties agree that these holdings require this matter to be reversed and remanded to the trial court. Treaster asks this court to evaluate Respondents’ Motion to Dismiss as one for Summary Judgment and render a ruling as the Missouri Supreme Court did in McCracken. In the case at bar, unlike McCracken, essential facts are contested. Therefore, such an undertaking by this Court would be improper.

      . Treaster cites this court’s opinion in Robinson v. Hooker, 323 S.W.3d 418 (Mo.App. W.D.2010), as an example to follow in treating a motion to dismiss as one for summary judgment. However, the cases are distinct. Because the injury in this cause arose in 2003, prior to the statutory changes to the Workers’ Compensation Law in 2005, the holding of Robinson, interpreting the 2005 amendments, would not be applicable. In Robinson, the trial court granted the motion to dismiss without specifying on which of three bases the dismissal was granted. Robinson, 323 S.W.3d at 421. Therefore, the court had to address each possible basis in turn because if any of the bases were proper, the dismissal would have been affirmed. The three possible bases the court addressed were (1) whether the co-employee was protected by the exclusivity provisions of the Workers’ Compensation statutes; (2) whether the plaintiff's claim was barred by res judicata; and (3) whether the co-employee was entitled to official immunity. Id. After the amendment of the Workers’ Compensation Law in 2005, the issue of whether a co-employee is entitled to immunity is no longer the highly fact specific "something more" test but a matter of strictly interpreting the Workers’ Compensation statutes. Id. at 423. Since this case arose before the amendment in 2005, the "something more” test is still applicable. Because of the fact-intensive nature of the "something more” test, as opposed to the strict construction of the Workers’ Compensation Law to determine co-employee liability, it would not be proper for this court to treat Treaster's Motion to Dismiss as one for Summary Judgment because the factual record has yet to be developed.


author: PER CURIAM.

text:
    Timothy KALTER, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93740.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 9, 2010.

      Alexandra Johnson, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, John W. Grantham, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, JR., P.J., and MARY K. HOFF, J„ and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Timothy Kalter (Movant) appeals from the motion court’s judgment denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. On appeal, Movant argues that the motion court erred because his plea counsel, by failing to apprise him of the fact that the trial court could order consecutive sentences, provided him ineffective assistance that impinged on the voluntariness and understanding of his guilty pleas. We affirm the motion court’s judgment.

We have reviewed the briefs of the parties and the record on appeal and find Movant is entitled to no relief on appeal. An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision.

We affirm the motion court’s judgment pursuant to Rule 84.16(b).


author: ROY L. RICHTER, Chief Judge.

text:
    Stan MURRAY, Claimant/Appellant, v. MIDWEST MORTGAGE CAPITAL, LLC, and Division of Employment Security, Respondents.
    No. ED 95480.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 9, 2010.
    Stan Murray, Wentzville, MO, pro se.
    Michael Pritchett, Jefferson City, MO, for Respondents.
    Midwest Mortgage Capital LLC, St. Louis, MO, pro se.
   ROY L. RICHTER, Chief Judge.

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

A deputy of the Division of Employment Security (Division) concluded that Claimant was ineligible for unemployment béne-fits, because he was employed while filing claims for benefits. In a related case, a deputy further determined that Claimant had been overpaid benefits in the amount of $3,586.32. Claimant appealed both of these determinations to the Appeals Tribunal, which affirmed. Claimant then filed an application for review with the Commission, which issued an order affirming the Appeals Tribunal’s decisions in these two matters. Claimant has now filed a notice of appeal to this Court from both decisions. The Division has filed a motion to dismiss Claimant’s appeal, asserting it is untimely. Claimant has not filed a response to the motion.

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

Here, the Commission mailed its decisions in both matters to Claimant on August 10, 2010. Therefore, the notice of appeal to this Court was due on or before September 9, 2010. Sections 288.200.2, 288.210. Claimant faxed his notice of appeal to the Commission on September 10, 2010. As a result, Claimant’s notice of appeal is untimely under section 288.200. The unemployment statutes do not provide for the late filing of the notice of appeal and do not recognize any exceptions for filing out of time. McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). Therefore, our only recourse is to dismiss the appeal.

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

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


text:
    Matthew SEYER, Respondent, v. Brian SIEVERS, et al., Appellants.
    No. ED 94151.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 9, 2010.
    Tom K. O’Loughlin II, Erica D. Koet-ting, Cape Girardeau, MO, for Appellant.
    Thomas A. Ludwig, Jackson, MO, for Respondent.
    Before ROY L. RICHTER, C.J., KURT S. ODENWALD, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Brian Sievers, et al. appeals the trial court’s decision that Matthew Seyer was entitled to a statutory way of necessity. We have reviewed the parties’ briefs and the record on appeal and find no error. We find the ruling in Hill v. Kennoy, Inc., 522 S.W.2d 775 (Mo. banc 1975) to be dispositive.

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


text:
    In the Interest of: J.L.P., J.L.P. and K.P.
    No. ED 94057.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 9, 2010.
    Christopher J. Swatosh, Ava, MO, for appellant.
    Tammy Steward, Farmington, MO, for respondent.
    Before: ROY L. RICHTER, C.J., KURT S. ODENWALD, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

J.P. (Mother) appeals the Judgment and Order of the juvenile court denying her motion to modify the juvenile court’s 2008 judgment removing her minor children, J.L.P., J.L.P., and K.P., from her legal and physical custody. We have reviewed the briefs of the parties and the record on appeal, and we conclude that the juvenile court’s decision is supported by substantial evidence. In re A.S.W., 226 S.W.3d 151, 153 (Mo. banc 2007). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b) (2010).


text:
    Antonio ANDERSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93991.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 9, 2010.
    Maleaner Harvey, St. Louis, MO, for appellant.
    Chris Koster and Mary H. Moore, Jefferson City, MO, for respondent.
    Before: GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Antonio Anderson appeals from the motion court’s judgment denying his Rule 29.15 motion. We have reviewed the briefs of the parties and the record on appeal, and we conclude the motion court’s denial of post-conviction relief was not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties, for their use only. We affirm the judgment pursuant to Rule 84.16(b).

      . All rule references are to Mo. R.Crim. P.2010, unless otherwise indicated.


text:
    GATES ENTERPRISES, LLC, Plaintiff/Respondent, v. CASH DEPOT, LLC, Defendant/Appellant.
    No. ED 94121.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 9, 2010.
    John P. Liehtenegger, Jackson, MO, for appellant.
    Richard Whiffen, Sikeston, MO, for respondent.
    Before ROY L. RICHTER, C.J., KURT S. ODENWALD, J., and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Defendant, Cash Depot, appeals from the judgment in favor of plaintiff, Gates Enterprises, in its action for unpaid rent. An opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. We affirm the judgment in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Dennis R. SIMS, Defendant/Appellant.
    No. ED 94332.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 9, 2010.
    Scott Thompson, St. Louis, MO, for Appellant.
    Anna Ruth Kratky, Assistant Circuit Attorney, St. Louis, MO, Respondent.
    Before GARY M. GAERTNER, JR., P. J., and MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

Dennis R. Sims (Defendant) appeals from the trial court’s judgment, following a jury trial, convicting him of, among other things, one count of third degree domestic assault, Section 565.074. Defendant argues on appeal that the trial court erred by admitting statements into evidence that were inadmissible hearsay. We affirm the trial court’s judgment.

We have reviewed the briefs of the parties and the record on appeal and find Defendant is entitled to no relief on appeal. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision.

We affirm the trial court’s judgment pursuant to Rule 30.25(b).


text:
    Katherine TANURCHIS, Appellant, v. WESSEL INVESTMENTS, INC., and DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. ED 94469.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 9, 2010.
    Bryan Christopher Edwards, St. Louis, MO, for Appellant.
    Wessel Investments, Inc., Ballwin, MO, Respondent Acting pro se.
    Bart Anton Matanic, Department of Labor and Industrial Relations, Division of Employment Security, Jefferson City, MO, for Respondent Division of Employment Security.
    Before: KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Katherine Tanurchis (Claimant) appeals from the denial of unemployment benefits in a decision of the Labor and Industrial Relations Commission (Commission). The Commission affirmed the decision of the Appeals Tribunal, which affirmed a deputy of the Division of Employment Security’s decision denying Claimant’s unemployment benefits because she was terminated from her employment due to misconduct. We affirm the Commission’s decision to disqualify Claimant from receiving unemployment benefits.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for them information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Marvelle Antoinne PEARSON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94436.
    Missouri Court of Appeals, Eastern District, Division Four.
    Nov. 9, 2010.

      Lisa M. Stroup, Missouri Public Defender Office, Assistant Public Defender, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, John W. Grantham, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before: KURT S. ODENWALD, P.J., ROBERT G. DOWD, JR., J. and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Marvelle Pearson (Pearson) appeals from the motion court’s denial, without an evidentiary hearing, of his Rule 24.035 amended motion for post-conviction relief. In his amended motion, Pearson claimed his plea counsel (Plea Counsel) was ineffective for failing to locate, interview, and endorse two witnesses, for failing to investigate the defense of self-defense, and for promising Pearson that he would not be sentenced to more than eleven years of imprisonment and that the court would not view a surveillance video of the crime prior to sentencing. The motion court denied Pearson’s amended motion without an evi-dentiary hearing. Finding no clear error in the motion court’s ruling, we affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no jurisprudential purpose. The parties have been furnished with a memorandum for their, information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b)(2).


author: KENNETH M. ROMINES, J.

text:
    Antoine SMITH, Appellant, v. STATE of Missouri, Respondent.
    No. ED 94582.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 9, 2010.

      Lisa Stroup, MO Public Defenders Office, St. Louis, MO, for appellant.
    Chris Koster, Richard A. Starnes, Jefferson City, MO, for respondent.
   KENNETH M. ROMINES, J.

Introduction

Antoine Smith (Smith) appeals the judgment of the Circuit Court of St. Louis County, the Honorable James R. Harten-bach presiding, which denied Smith’s post-conviction motion for relief without an evi-dentiary hearing. We affirm.

Factual and Procedural Background

On 17 May 2007, Antoine Smith was tried as a prior offender for one count of assault in the first degree, one count of robbery in the first degree, and two counts of armed criminal action. On 19 May 2007, a jury convicted Smith on all charges. On direct appeal, this Court affirmed Smith’s conviction pursuant to Rule 30.25(b). Smith then filed an amended motion raising two claims of ineffective assistance of counsel pursuant to Rule 29.15. On 4 February 2010, the motion court denied Smith’s claims for relief without an evidentiary hearing finding that the record conclusively refuted both claims. This appeal follows.

Smith appeals the same two Rule 29.15 claims: (1) the motion court erred in denying Smith’s post-conviction motion claiming ineffective assistance of trial and appellate counsel for counsels’ failure to object that Smith’s conviction for both first-degree assault and first-degree robbery was a double jeopardy violation because the first-degree assault was a lesser-included offense of the first-degree robbery. And: (2) the motion court erred in denying Smith’s post-conviction motion claiming ineffective assistance of trial counsel for counsel’s failure to request a mistrial after the prosecutor improperly referred to Smith being in custody and being forced to wear leg restraints during trial. For these reasons, Smith claims the motion court clearly erred in denying, without an evidentiary hearing, both claims in his motion for post-conviction relief.

Standard of Review

Review of denial of a post-conviction motion for relief is limited to a determination of whether the motion court’s findings and conclusion are clearly erroneous. Evans v. State, 315 S.W.3d 404, 405 (Mo.App. E.D.2010). Findings of fact and conclusions of law are clearly erroneous if, after reviewing the record, the appellate court is left with the definite and firm impression that a mistake has been made. Id. We review the motion court’s findings and conclusion as presumptively correct. Edwards v. State, 200 S.W.3d 500, 505 (Mo. banc 2006).

Discussion

Both points Smith raises on appeal are claims of ineffective assistance of counsel. A criminal defendant seeking post-conviction relief for ineffective assistance of counsel must establish that: (1) counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney; and (2) as a result, the defendant was prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Tisius, 183 S.W.3d at 212. The defendant must overcome a strong presumption that counsel performed reasonably and competently to meet the first prong. Bradley v. State, 292 S.W.3d 561, 564 (Mo.App. E.D.2009). To meet the second prong, the defendant must show a reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been different. Id.

Smith first claims ineffective assistance of both trial and appellate counsel for their failure to object that convicting Smith of both assault and robbery was a double jeopardy violation. Smith argues the assault was a lesser-included offense of the robbery and it was thus a double jeopardy violation to convict him for both offenses. Smith claims that, but for counsels’ failure to object, he would have been discharged as to either or both of the charges. We disagree.

Smith fails to prove counsel was ineffective for raising a double jeopardy claim because convicting him of both robbery and assault was not a double jeopardy violation. If a defendant commits more than one offense with the same conduct, typically he may be prosecuted for each different offense. § 556.041.1. An exception applies when one offense is a “lesser-included offense” of the other, which means it can be established by proof of the same or less than all of the facts required for proving the other offense. §§ 556.041(1), 556.046.1(1). An offense is not “lesser included” if it includes any necessary element not required for the other offense. Becker v. State, 260 S.W.3d 905, 908 (Mo.App. E.D.2008).

Neither first-degree assault nor first-degree robbery was a lesser-included offense of the other here because each offense had essential elements the other does not. To convict Smith of first-degree assault, the jury had to find that: (1) Smith attempted to kill or cause serious physical injury to the victim; and (2) in doing so, he actually caused serious physical injury. § 565.050. To convict him of first-degree robbery, the jury had to find that: (1) Smith took the victim’s property for the purpose of depriving her of it; (2) Smith actually used physical force for the purpose of preventing resistance to his taking of the property; and (3) while using such force, Smith used or threatened the immediate use of a dangerous instrument. § 569.020.1. Each offense required a finding not included in the other. The robbery charge required property theft and the assault charge did not; the assault charge required infliction of serious physical injury and the robbery charge did not. Thus, neither assault nor robbery was an included offense of the other.

Because assault and robbery were separate charges, convicting Smith of both was not a double jeopardy violation. Accordingly, it would have been non-meritorious to assert double jeopardy as an objection to convictions for both. Counsel is not ineffective for failing to make a non-meritorious objection. Middleton v. State, 103 S.W.3d 726, 741 (Mo. banc 2003). The motion court did not clearly err in finding that counsel was not ineffective for failing to assert a nonrmeritorious double jeopardy objection and denying i'elief for this claim without an evidentiary hearing.

In his second point on appeal, Smith claims the motion court clearly erred in denying, without an evidentiary hearing, his claim that trial counsel was ineffective for failing to request a mistrial after the prosecution asked Smith about wearing an unseen leg restraint. Smith argues the question let the jury know that he was already incarcerated at trial. Smith also argues that exposing his incarceration “destroyed the presumption of innocence” because it would have caused the jury to assume he was guilty. Smith claims that counsel was ineffective for failing to request a mistrial after he was asked about the leg restraint because it was reasonably probable a mistrial would have been granted but for trial counsel’s failure to request it, and counsel’s failure to request mistrial prejudiced Smith.

Mistrial is a drastic remedy only to be exercised in extraordinary circumstances where there is no other way to remove the prejudice to the defendant. State v. Garnett, 298 S.W.3d 919, 924 (Mo.App. E.D.2009). An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). To constitute ineffective assistance, any deficiencies in counsel’s performance must be prejudicial to the defense. Strickland, 466 U.S. at 691-92, 104 S.Ct. 2052.

Throughout trial, Smith wore regular clothing, and Smith’s leg shackle was never visible to the jury. At one point, the prosecutor asked Smith if he was limping and Smith replied that he had on a brace. Smith’s trial counsel objected to the question and the court sustained the objection. No other direct or indirect reference or inference about Smith wearing restraints or being restrained occurred at trial. And Smith merely referred to wearing a “brace,” which was not a direct reference to the sort of shackling restraint that might have suggested something to the jury that would have impacted the presumption of innocence. Altogether, these facts fall far short of showing Smith suffered irreparable prejudice warranting a mistrial. A request for a mistrial in this case would have been non-meritorious. Trial counsel was not ineffective for failing to make a non-meritorious request for a mistrial after Smith acknowledged he wore a leg “brace”. The motion court did not clearly err in finding that Smith was not prejudiced by this comment and that trial counsel was not ineffective for failing to request a mistrial for this claim of error.

ROY L. RICHTER, C.J., and STEPHEN K. WILLCOX, Sp., J., concur.

      . State v. Smith, 262 S.W.3d 298 (Mo.App. E.D.2008).

      . All Rule references are to the Mo. Sup.Ct. Rules.

      .Rule 29.15 sets forth the procedure for litigating claims of ineffective assistance of counsel when the defendant has been convicted of a felony. Tisius v. State, 183 S.W.3d 207, 211 (Mo. banc 2006).

      . All statutory references are to RSMo 2000, unless otherwise indicated.


author: NANNETTE A. BAKER, Presiding Judge.

text:
    STATE of Missouri ex rel. Jeffrey THURMAN, Relator, v. Honorable Kenneth W. PRATTE, Judge of the Circuit Court, 24th Judicial Circuit, Division II, Farmington, Missouri, Respondent.
    No. ED 95387.
    Missouri Court of Appeals, Eastern District. Writ Division Six.
    Nov. 9, 2010.

      Thomas Marshall, Donald Catlett, Co-Counsel, Columbia, MO, for relator.
    Kevin Zoellner, Jefferson City, MO, Wendy Horn, Co-Counsel, Farmington, MO, for respondent.
   NANNETTE A. BAKER, Presiding Judge.

Introduction

Jeffrey Thurman (“Relator”) filed a petition for a writ of prohibition or in the alternative, a writ of mandamus to prohibit the Honorable Kenneth W. Pratte (“Respondent”) from ordering that Relator submit to a mental examination by the State. The issue before this court is whether Respondent has the authority to order a mental examination of Relator regarding his mental state at the time of the alleged criminal conduct after Relator disclosed an expert report concluding that he is mentally retarded. We issued a preliminary writ in prohibition. We now hold that Respondent exceeded his authority in ordering the mental examination and make the preliminary writ permanent.

Factual and Procedural Background

The State charged Relator with one count of murder in the first degree, in violation of Section 565.020, for the beating death of Ricky Haynes. The State also filed a “Notice of Intent to Seek the Death Penalty” pursuant to Section 565.005. Relator entered a plea of not guilty to the charge. Relator did not enter a plea of not guilty by reason of mental disease or defect excluding responsibility nor did he file any written notice that he intended to rely on such a defense.

Relator’s counsel however did disclose to the State a report prepared by Dr. Stephen Greenspan, a licensed psychologist. In the report, Dr. Greenspan concluded that Relator is mentally retarded as defined by Section 565.030.6 RSMo. Supp. 2006. In response, the State filed a motion with Respondent seeking an order “directing that a mental examination of [Relator] be done by a psychologist or psychiatrist of the State’s choosing pursuant to Section 552.030 ... and to have a written report filed .... ”

Respondent conducted a hearing on the State’s motion. The State argued that it was entitled to a mental evaluation because Relator, through the disclosure of Dr. Greenspan’s opinion, “called into question his mental status and whether he is criminally responsible for these actions ....” In response, Relator contended that the State cannot obtain a mental evaluation of Relator without a plea of not guilty by reason of mental disease or defect excluding responsibility, written notice of intent to so plead, or a showing he was incompetent to stand trial. Relator asserted that Dr. Greenspan’s finding that Relator is mentally retarded only affects his eligibility for the death penalty pursuant to Section 565.030.4. and is distinct from a plea of not guilty by reason of mental disease or defect, written notice of Relator’s intent to enter such a plea, or a claim of incompetence to stand trial.

After the hearing, Respondent issued an “Order for Psychiatric Examination of Defendant.” In the order, Respondent found, inter alia, that the “State has the right to have a mental examination conducted by a psychiatrist or psychologist of their own choosing upon notice that the accused may rely upon the defense of mental disease or defect excluding responsibility under both Chapter 552 and the Court’s inherent authority.” Respondent also ordered that Relator “submit and cooperate with an examination by doctors assigned by the Department of Mental Health” and that a “report of the findings of said examination shall be made to the Court.” Respondent ordered that the report shall include:

An opinion as to whether at the time of the alleged criminal conduct the accused, as a result of mental disease or defect, did not know or appreciate the nature, quality, or wrongfulness of his conduct or as a result of mental disease or defect was incapable of conforming his conduct to the requirements of law [.]

Relator filed the instant petition seeking an order in prohibition or in the alternative, in mandamus “to prohibit Respondent from ordering that Relator submit to a psychiatric evaluation by the State, pursuant to § 552.020 or § 552.030, or, alternatively, to order that Respondent deny the State’s motion for such an evaluation.” Upon our request, the State filed suggestions in opposition to the petition on behalf of Respondent.

Discussion

The extraordinary remedy of a writ of prohibition is appropriate to “remedy an excess of authority ... where the lower court lacks the power to act as intended .... ” State ex rel. Mo. Pub. Defender Comm’n v. Pratte, 298 S.W.3d 870, 880 (Mo. banc 2009). Whether a trial court exceeded its authority is a question of law, which we review independently. Id. at 881. When a trial court exceeds its authority in ordering that a defendant should undergo a mental examination, a writ of prohibition should issue to prohibit enforcement of the trial court’s order. State ex rel. Proctor v. Bryson, 100 S.W.3d 775, 777-78 (Mo. banc 2003).

Relator contends that a writ of prohibition is necessary because Respondent exceeded his authority by ordering Relator to submit to a mental examination. Relator specifically argues that because he has neither pled nor given written notice of his intent to plead not guilty by reason of mental disease or defect excluding responsibility, Respondent did not have any authority to order an examination as to Relator’s mental state at the time of the alleged criminal conduct.

Rule 25.06(B) generally allows a trial court to order a mental examination of a defendant upon good cause being shown. State ex rel. Westfall v. Crandall, 610 S.W.2d 45, 47 (Mo.App. E.D.1980); see also State v. Boyd, 143 S.W.3d 36, 44 (Mo.App. W.D.2004). However, Sections 552.020 and 552.030 mandate specific prerequisites before a trial court may order a mental evaluation regarding a defendant’s mental state at the time of the alleged criminal conduct. See State ex rel. Proctor, 100 S.W.3d at 777-78.

Section 552.030 provides that a trial court, after notice and upon motion of either the State or the defendant, has the authority to order a mental examination of a defendant whenever he or she pleads “not guilty by reason of mental disease or defect excluding responsibility” or files “a written notice of such [defendant’s] purpose to rely on such defense [.] ” Section 552.030.2-.3. The report of this examination shall include:

an opinion as to whether at the time of the alleged criminal conduct the [defendant], as a result of mental disease or defect, did not know or appreciate the nature, quality, or wrongfulness of his conduct or as a result of mental disease or defect was incapable of conforming his conduct to the requirements of law.

Section 552.020.4. The trial court may order an “evaluation as to the defendant’s mental state at the time of the alleged criminal act” only if the defendant entered a plea of not guilty by reason of mental disease or defect or filed the written notice provided in Section 552.030.2. See State ex rel. Proctor, 100 S.W.3d at 777-78.

Here, Respondent ordered an examination regarding Relator’s mental state at the time of the alleged criminal conduct. As Respondent concedes, Relator did not plead not guilty by reason of mental disease or defect excluding responsibility nor file written notice of his purpose to rely on that defense. Relator merely disclosed a report concluding that he is mentally retarded as defined by Section 565.030. Therefore, Respondent exceeded his authority because a trial court may not order an evaluation as to the defendant’s mental state at the time of the alleged crime without the required plea or written notice. State ex rel. Proctor, 100 S.W.3d at 777-78.

Respondent argues that the report’s finding that Relator is mentally retarded is the “functional equivalent” of the required plea or notice. Respondent’s argument is incorrect because Section 565.030, the statutory section on which Dr. Greenspan based his report, does not allow a defendant to plead that he or she is not guilty by reason of mental disease or defect excluding responsibility. Instead, Section 565.030 eliminates the death penalty as a potential sentence “[i]f the trier finds by a preponderance of the evidence that the defendant is mentally retarded [.] ” Section 565.030.4(1). A finding that a defendant is mentally retarded for the purposes of Section 565.030 “relates solely to the punishment and not to [a defendant’s] guilt for first-degree murder.” State v. Johnson, 244 S.W.3d 144, 152 (Mo. banc 2008).

Because Respondent did not have the authority to compel Relator to submit to a mental examination regarding his mental state at the time of his alleged criminal conduct, a writ of prohibition is appropriate to prevent Respondent from enforcing the order. State ex rel. Proctor, 100 S.W.3d at 777-78. We therefore need not address Relator’s argument that Respondent exceeded his authority by ordering an examination regarding Relator’s competence to stand trial.

Conclusion

For the foregoing reasons, we make permanent our preliminary writ of prohibition ordering Respondent not to enforce the order directing Relator to submit to a mental examination.

ROY L. RICHTER, C.J., and PATRICIA L. COHEN, J., concur.

      . The State also charged Movant with two counts of stealing, but these counts are not relevant to Relator's instant petition.

      . All statutory references are to RSMo.2000, unless otherwise indicated.

      .Dr. Greenspan’s report states "Section 564.030.” However, "Section 564.030” does not exist, and the statutory language quoted in the report is taken from Section 565.030.6. We will therefore assume Dr. Greenspan made a typographical error.

      . Although Relator’s petition sought a writ of mandamus in the alternative, this court may choose which type of writ to apply. State ex rel. Unnerstall v. Berkemeyer, 298 S.W.3d 513, 516 (Mo. banc 2009). Because we believe a writ of prohibition is the appropriate writ to prohibit enforcement of the order, we will not discuss the applicability of a writ of mandamus.

      . All rule references are to Mo. Sup.Ct. R. (2010), unless otherwise indicated.

      . Because Relator disclosed Dr. Greenspan’s report concluding that Relator is mentally retarded and such a finding affects Relator’s eligibility for the death penalty, the trial court could find that good cause exists under Rule 25.06(B) to order a pretrial mental examination of Relator regarding his claim of mental retardation for the purposes of Section 565.030.

      . Contrary to Respondent’s order, it is a defendant’s burden to prove that he or she is mentally retarded for the purpose of avoiding the death penalty. State v. Johnson, 244 S.W.3d 144, 150-51 (Mo. banc 2008).

      . In State v. Whitfield, the Missouri Supreme Court found Section 565.0304 RSMo.1994 to be unconstitutional. 107 S.W.3d 253, 261-62 (Mo. banc 2003) However, the legislature amended Section 565.030.4(1) in 2001 to prohibit the execution of a mentally retarded defendant. Id. at 259 n. 5. Section 565.030.4(1) RSMo. Supp.2006, the version of the law on which we rely, has not been found to be unconstitutional.


text:
    Morris HILL, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 94049.
    Missouri Court of Appeals, Eastern District, Division Five.
    Nov. 9, 2010.
    Maleaner Harvey, St. Louis, MO, for appellant.
    Chris Koster, Dora A. Fichter, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, JR., P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Movant, Morris Hill, appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. The motion court’s findings and conclusions are not clearly erroneous. Rule 24.035(k). An extended opinion would have no prece-dential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed in accordance with Rule 84.16(b).