author: JEFFREY W. BATES, Presiding Judge.

text:
    Sharon Jean SMITH, Petitioner-Respondent, v. John Antonio SMITH and Missouri Department of Social Services, Division of Child Support Enforcement, Respondents-Appellants.
    No. SD 30010.
    Missouri Court of Appeals, Southern District, Division One.
    April 30, 2010.

      Don W. Crank, Springfield, MO, for Appellant.
    Dan K. Purdy, Osceola, MO, for Respondent.
   JEFFREY W. BATES, Presiding Judge.

The trial court entered a judgment permanently enjoining the Missouri Department of Social Services, Division of Child Support Enforcement (DCSE) from collecting child support from Sharon Jean Smith (Mother). Because Mother waived the right to challenge the constitutionality of the underlying administrative child support order and accepted the burden of that order, the trial court’s decision was in error. The judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

The marriage of Mother and John Antonio Smith (Father) was dissolved on January 29, 1992. The circuit court awarded custody of the parties’ minor child to Father. Because Mother was unemployed, the court did not order her to pay any child support to Father. No further activity occurred until 1994.

The version of § 454.496 in effect in 1994 authorized the DCSE to review an existing child support order and file a motion to modify the order. § 454.496.1 RSMo (1994). The DCSE was required to set forth in writing the reasons for the modification and serve it on the party against whom the motion was made. Id. The DCSE then was required to give that party 30 days “either to resolve the matter by stipulated agreement or to serve the moving party and the director, as appropriate, by regular mail with a written response setting forth any objections to the motion and a request for hearing.” Id. If that party did not object or request a hearing within 80 days, the DCSE was required to enter an administrative order granting the relief sought upon proof of service. § 454.496.2 RSMo (1994). To make the administrative order enforceable, the DCSE was required to file it with, and have it approved by, the court that entered the original child support order. § 454.496.6 RSMo (1994). The trial court was required to determine whether the administrative order complied with the provisions of Rule 88.01. Id. The filing of the administrative order, however, started a 45-day time period for the trial court to take that action. In relevant part, this subsection of the statute stated:

If no action is taken by the court within forty-five days of the filing of the administrative order with the court, and no petition for judicial review has been filed pursuant to sections 536.100 to 536.140, RSMo, the court shall be deemed to have made a written finding that the administrative order complies with the provisions of supreme court rule 88.01 and to have approved the administrative order.

Id.

In December 1994, the DCSE prepared a motion to modify the child support order pursuant to the provisions of § 454.496 RSMo (1994). A copy of the motion was served upon Mother by certified mail on December 23, 1994. Mother took no action. On January 23, 1995, the DCSE entered an order requiring Mother to begin paying child support of $142 per month effective February 15, 1995. On January 25, 1995, the DCSE filed the motion, a certified mail receipt proving service upon Mother and the administrative order with the circuit court. Mother did not file a petition for judicial review within 45 days thereafter. The circuit court also took no action during that time period. Pursuant to the provisions of § 454.496.6 RSMo (1994), the administrative order was deemed approved on March 13, 1995. On October 8, 1996, the DCSE filed an order directing Mother’s employer to withhold $163 a month: $142 for current child support; and $21.30 per month to pay off a “state debt and/or arrearage of $2712.” On November 19, 2007, Mother filed a motion to modify. The motion asked the court to “enter its Order setting aside the child support order entered herein by [the DCSE] ...; to enjoin [the DCSE] from purporting to enter a child support order in this case; [and] to reimburse [Mother] for all sums which heretofore have been expended and incurred from her....” On September 9, 2009, the circuit court entered a judgment decreeing that the DCSE was “permanently enjoined from collecting or attempting to collect child support from [Mother].” In making that decision, the trial court relied upon Kubley v. Brooks, 141 S.W.3d 21 (Mo. banc 2004), and Collor-Reed v. Ward, 149 S.W.3d 897 (Mo.App.2004). The DCSE appealed.

In this court-tried case, appellate review is governed by Rule 84.13(d). In re Marriage of Looney, 286 S.W.3d 832, 834 (Mo.App.2009). This Court must affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We review the trial court’s determination of questions of law de novo. Maggi v. Wood, 244 S.W.3d 274, 277 (Mo.App.2008).

The DCSE presents two points of alleged error, which we will discuss together for ease of analysis. The DCSE contends the trial court erred in permanently enjoining the DCSE from collecting child support from Mother because: (1) she waived her right to challenge the validity of the March 1995 administrative order by failing to timely assert a claim that the order was entered pursuant to a portion of § 454.496 RSMo (1994) later held unconstitutional; and (2) Mother also is estopped from attacking the administrative order because she accepted the burdens of the order for many years. We agree with both arguments.

The trial court granted Mother’s request for injunctive relief because the court decided that Kubley and Collor-Reed were controlling. That decision was in error. In both Kubley and Collor-Reed, the DCSE attempted to enter an administrative order pursuant to § 454.470.1 based upon the asserted absence of an existing court order. Kubley, 141 S.W.3d at 25; Collor-Reed, 149 S.W.3d at 899-900. In each case, that attempt was held improper because there was an existing court order in place. Kubley, 141 S.W.3d at 26; Collor-Reed, 149 S.W.3d at 900-01. Neither case involved an attempt by the DCSE to modify an existing support order pursuant to § 454.496 RSMo (1994). Indeed, our Supreme Court stated in Kubley that “[i]f DCSE believed a different support amount was proper, it was required to move for modification under section 454.496.5.” Kubley, 141 S.W.3d at 27. In the case at bar, the DCSE utilized the modification procedure set forth in § 454.496 RSMo (1994). Therefore, neither Kubley nor Collor-Reed has any application here.

Instead, the outcome of this appeal is controlled by Dept. of Social Services, Div. of Child Support Enforcement v. Houston, 989 S.W.2d 950 (Mo. banc 1999). There, the DCSE sought to modify an existing child support order pursuant to § 454.496 RSMo (1994). The obligated parent, Houston, was served and failed to respond within 30 days as required. Thereafter, upon proof of service, the DCSE entered an order modifying child support. The order was filed with the circuit court. Houston did not file a petition for review, and the circuit court took no action to approve the order within 45 days. Pursuant to § 454.496.6 RSMo (1994), the court was deemed to have found that the administrative order complied with Rule 88.01. The obligee parent, Phillips, filed a lien request to enforce the order about two months later. Houston took no action to contest the lien. Houston, 989 S.W.2d at 950-51. Fifteen months after the administrative order was deemed approved and one year after the lien request was filed, Houston filed a motion to strike the modified order. The circuit court, relying on Chastain v. Chastain, 932 S.W.2d 396 (Mo. banc 1996), set aside the administrative order because it had been entered without judicial approval. The DCSE and Phillips appealed. Houston, 989 S.W.2d at 951.

On appeal, our Supreme Court addressed two issues: (1) whether Houston could challenge the administrative order 15 months after it was entered despite not having filed a petition for review or challenged the lien; and (2) whether an administrative order that was not signed by an article V judge could be enforced as a judgment. Id. at 951-52. This appeal presents the same two issues.

With respect to the first issue, our Supreme Court noted in Houston that “constitutional violations are waived if not raised at the earliest possible opportunity.” The Court held that, “[bjecause Houston did not file a petition for review, he waived any right to assert a constitutional claim or to have it asserted by the circuit court on his behalf.” Id. at 952. In the case at bar, Mother similarly failed to file a petition for review. Therefore, she waived any right to assert, or have the circuit court assert on her behalf, that the deemed approval procedure in § 454.496.6 RSMo (1994) was unconstitutional.

With respect to the second issue, our Supreme Court noted that “a party who accepts the burden of a child support modification order is estopped from challenging its validity.” Houston, 989 S.W.2d at 952. Because Houston made no effort to challenge the validity of the administrative order for 15 months or contest the lien, the Court held that Houston’s conduct constituted an affirmance of the validity of the order. Id. In the case at bar, Mother took no action to challenge the validity of the DCSE administrative order for over 12 years (March 1995 to November 2007). Moreover, an income withholding order was issued to Mother’s employer in October 1996. There is no indication in the record that Mother took any action to contest that order. Indeed, it appears that Mother accepted the burden of the order because her November 2007 motion to modify expressly requested reimbursement of sums previously paid by her. Therefore, Mother is estopped from challenging the validity of the modified administrative order. Id. at 952-53.

Both of the DCSE’s points are granted. The September 2009 judgment granting Mother’s request for injunctive relief resulted from a misapplication of the law by the trial court. Therefore, that judgment is reversed. The cause is remanded for further proceedings consistent with this opinion.

BARNEY and BURRELL, JJ., Concur.

      . This procedure was available to the DCSE at any time after the entry of a child support order in a case in which support rights had been assigned to the state of Missouri pursuant to § 208.040 or in a case in which support enforcement services were being provided pursuant to § 454.425. § 454.496.1 RSMo (1994).

      . Except for this reference to Rule 88.01 in effect in 1994, all further references to rules are to Missouri Court Rules (2009). Unless otherwise specified, all further references to statutes are to RSMo (2000).

      . The constitutionality of § 454.496.6 RSMo (1994) was addressed in Chastain v. Chastain, 932 S.W.2d 396 (Mo. banc 1996). Our Supreme Court decided that it was constitutional for the DCSE to possess the authority "to initiate a process to modify judicial child support orders.” Id. at 397. However, the Court also decided that it was unconstitutional for "the General Assembly to require, then pretermit, judicial review of an administrative modification of a child support order if a court fails to approve the administrative order within forty-five days.” Id. Accordingly, the Court held "that the default judicial approval provisions of section 454.496.6 violate article V, section 18 of the Missouri Constitution.” Id. at 400. The Court made clear, however, “that the remaining portions of the statute may stand." Id.

      . Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.


source: Caselaw Access Project

author: JAMES M. SMART, JR., Judge.

license: Public Domain

text:
    William Randall COLLIER, et al., Appellants, v. Edward M. MANRING, Edward M. Manring, P.C., and Manring & Parman, P.C., Respondents.
    No. WD 70268.
    Missouri Court of Appeals, Western District.
    May 4, 2010.

      Stephen S. Brown, Kansas City, MO, for appellant.
    Robert A. Brown, Jr., St. Joseph, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   JAMES M. SMART, JR., Judge.

In 1999, John W. Collier and Kathryn Collier were senior citizens owning farm land and other property located in Gentry County, Missouri. The Colliers had three adult children: Randall Collier, Rodney Collier, and Rhonda Haight. In late 1999, the Colliers moved off their farm into a house in Albany, Missouri. At about that same time, the Colliers were exploring the adoption of a trust to hold their assets and ultimately govern the distribution of their assets. John Collier consulted with attorney Edward M. Manring, who prepared trust documents which the Colliers executed in December 1999. The Colliers were co-grantors and co-trustees of a revocable inter-vivos trust.

Pursuant to the terms of the trust, and subject to the rights of the grantors to revoke the trust and to withdraw property from the trust, the property would remain in trust until the passing of the survivor of the two grantors. At that time, a certain farm property called the “north farm” was to be distributed to Rhonda; the house in Albany was to be distributed to Randall; and another tract called the “south farm” was to be held in trust for the benefit of Rodney Collier during his lifetime. At the death of Rodney, the south farm was to be distributed to any issue of Rodney, and, if Rodney had no issue, then to Rhonda’s issue. Rodney was married but had no issue. The disposition of the south farm was apparently designed to bypass Rodney’s wife in the distribution of the estate.

The day after the trust documents were executed, Kathryn resigned as co-trustee. While often in such trusts the resignation of one spouse results in the remaining spouse serving as sole trustee, in this case the Collier’s daughter, Rhonda Haight, became successor co-trustee with her father. Several days later, Kathryn passed away. Two years later, in 2002, John Collier contacted Mr. Manring with a desire to alter the terms of the estate plan. At this time, Rodney had become divorced. Therefore, apparently, Mr. Collier desired to leave the south farm and adjoining property (hereafter collectively referred to as “south farm”) to Rodney outright in fee simple. Mr. Collier and Mr. Manring sought to create a separate individual trust for the benefit of Rodney, which, instead of leaving a life interest to Rodney in the particular property, would leave the south farm outright to Rodney in fee simple absolute, eliminating any separate remainder interest that might fall to the Haights.

Mr. Manring drafted a separate trust, which was executed in October 2002. Mr. Manring prepared deeds to transfer the property from the original trust back to John W. Collier, individually, and then from Mr. Collier individually to the new trust. Mr. Manring proceeded in accordance with the understanding that Mr. Collier, as surviving grantor, had the right to withdraw property from the revocable trust as he wished. Thus, Mr. Manring assumed that Mr. Collier should not have needed Rhonda Haight’s or anyone else’s permission to withdraw property from the original trust. Although Rhonda Haight remained a co-trustee of the original trust and was present with her father at the time the deeds were executed, Mr. Manr-ing did not ask Mrs. Haight to join in the execution of deeds transferring the properties out of the original trust. Mrs. Haight asked if she needed “to sign anything” and was told that she did not.

In March 2004, John W. Collier passed away. In addressing the matters of the trust, a dispute emerged. Rodney and Randall believed that the new trust governed the distribution of the south farm property, which had been placed in the new trust, while Rhonda Haight now believed that the south farm property still remained in the original trust and was subject to its terms because she never executed deeds as co-trustee to transfer the property. Mrs. Haight contended that the purported transfers in 2002 were invalid.

On April 27, 2005, Randall and Rodney sued Rhonda Haight and her children (collectively, “the Haights”) and Edward M. Manring; Edward M. Manring, P.C.; and Manring & Parman, P.C. (collectively, “the Manring defendants”). The petition’s first seven counts made allegations against the Haights. Count I was for declaratory judgment and sought a declaration that the south farm belonged to the 2002 Trust. Count II was a quiet title action and requested that the court quiet title of the south farm in favor of the 2002 Trust. Count III was an action for accounting and sought discovery related to assets and accounts of the 1999 Trust and the 2002 Trust. Count IV was an action for breach of fiduciary duty, alleging that Rhonda Haight breached her fiduciary duties as co-trustee. Count V was an action for a temporary restraining order and injunction, seeking to prevent Rhonda Haight from using trust assets. Counts VI and VII were claims against the John W. Collier Estate, alleging that, as trustee of the 1999 Trust, it breached the deed warranties and covenants in the trustees as to the south farm and the adjoining property.

Count VIII was an action for legal malpractice against the Manring defendants. It was designated an alternative count. It alleged that if the court were to determine that the transfers were invalid, then the count for legal malpractice would apply in the alternative to the other counts. The count alleged that if Manring had asked Rhonda Haight to execute the deeds as co-trustee, the transfers would have been effective. Rodney’s and Randall’s legal malpractice claim against the Manring defendants alleged that Manring: (1) negligently prepared the 1999 Trust and 2002 Trust and accompanying documents; (2) negligently prepared deeds that were intended by John W. Collier to transfer real estate from the 1999 Trust to the 2002 Trust; and (3) negligently advised John W. Collier that his intent as grantor had been accomplished and that he had validly transferred the south farm and adjoining property to the 2002 Trust so that Rodney Collier would receive the property outright. Rodney and Randall sought, as their primary element of damages against the Manring defendants, their reasonable attorneys’ fees, costs, and expenses incurred in prosecuting the claims against the Haights.

In October 2007, after two and one-half years of litigation, the Colliers and the Haights reached a “Family Settlement Agreement,” which was approved by the Gentry County Circuit Court. The settlement involved all parties to the first seven counts of the lawsuit and disposed of all claims contained in Counts I-VII of the petition, including counter claims and motions filed by the Haights. It did not involve the Manring defendants. Pursuant to the settlement, Randall and Rodney and the Haights agreed to the following relevant items:

To release one another from claims stemming from the estates of John W. Collier and Kathryn Collier;
To execute quit-claim deeds transferring the South Farm and the Adjoining Property to Rodney Collier and to sign a stipulation requesting the court to quiet title in these properties. The court subsequently quieted title to the South Farm and Adjoining Property in the name of Rodney Collier;
To execute quit-claim deeds transferring property referred to as the North Farm to Rhonda Haight. The court subsequently quieted title to the North Farm in the name of Rhonda Haight;
To identify certain sales proceeds as assets of the 1999 Trust and distribute them to pay attorneys’ fees and to Rhonda Haight’s four children;
To count certain bank funds as rents and income from trust property and distribute them to Rodney Collier (for those pertaining to the South Farm) and Rhonda Haight (for those pertaining to the North Farm);
To pay Randall Collier money from an annuity;
To pay various trust accounting expenses;
To distribute any damages recovered from the suit against Manring in a specified manner.

After the settlement, the only claims remaining were Randall’s and Rodney’s and the Haights’ separate legal malpractice claims against the Manring defendants.

The Manring defendants moved for partial summary judgment on the issue of attorneys’ fees, arguing that the Colliers were not entitled to recover attorneys’ fees as damages because they had failed to show entitlement to such fees under any permissible basis. The Colliers moved for cross-summary judgment on the same issue, arguing that their attorneys’ fees were recoverable as an element of damages because they were incurred in the prosecution of the claims against the Haights, which litigation was caused by Manring’s negligent acts. The Colliers claimed the fees were recoverable under the “special circumstances” and “collateral litigation” exception to the general rule that each party pays its own attorneys’ fees.

On May 15, 2008, the trial court entered partial summary judgment in favor of the Manring defendants, ruling that, as a matter of law, the Colliers could not recover attorneys’ fees. The Colliers and Haights dismissed any claim for any damages beyond attorneys’ fees. Having determined all remaining issues under Count VIII, and having settled all other issues, the Colliers and the Haights subsequently dismissed their remaining claims, rendering the judgment final. Rodney and Randall Collier appeal.

Analysis

No dispute exists as to the material facts that frame the issues on appeal. We are not called upon to address the underlying issues of legal malpractice such as those related to breach of duty and causation. We address only the issue of whether the trial court properly ruled that attorneys’ fees could not legally be submitted as damages if indeed ultimately there is determined to be a submissible case of legal malpractice. The issue of whether the trial court properly entered judgment for the Manring defendants on the basis that no such damages could be recoverable is an issue of law which we review de novo. Christian County v. Edward D. Jones & Co., L.P., 200 S.W.3d 524, 527 (Mo. banc 2006).

The settlement agreement was an agreement between all parties except the Manring defendants. After the family settlement agreement was entered into, plaintiffs Randall and Rodney shifted their attention to the Manring defendants, claiming that the Manring defendants are liable for the attorneys’ fees incurred in the litigation against the Haights over the estate plan. Despite the fact that their petition all along had asserted that their claim against these defendants was an alternative, contingent claim, dependent upon the court determining that the purported transfers into trust were invalid, and despite the fact that the litigation over the purported transfers had been resolved by agreement rather than by adjudication, the plaintiffs, through oversight, did not move to amend their petition to make clear that the legal malpractice claim now stood on its own (because there was no extant judicial determination of the invalidity of the transfers that would be binding on the defendants).

Nevertheless, despite the failure to remove the “alternative” and “contingency” language from the petition, it is evident that Randall and Rodney intended to assert a claim of professional negligence against the Manring defendants as to the cost of litigating against the Haights over the disposition of the property in question. The plaintiffs obviously wish to allege that the transfers were invalid (without the necessity of a court so ruling in adjudicating the counts against the Haights), and that such invalidity was caused as a result of the alleged negligence of Mr. Manring. The fact that there was no such amendment of the petition, however, may have caused some confusion for the trial court as the court sought to determine whether the legal negligence claim was a claim for damages for “collateral litigation.”

One element of damage sometimes sought in claims of legal malpractice is the cost of dealing with any litigation caused by the alleged negligence. For instance, if there is a title defect to real estate caused by alleged negligence, the plaintiff will generally seek to recover from the tortfea-sor the costs of the legal work to clear the title. Generally, reasonable costs of a necessary collateral proceeding are recoverable, while the fees incurred in suing the attorney for malpractice are generally not recoverable. The Restatement (Second) of Torts, section 914 (1979), provides an apt summary:

(1) The damages in a tort action do not ordinarily include compensation for attorney fees or other expenses of litigation.
(2) One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action.

(Emphasis added.) Comment b on Subsection (2) of section 914 provides:

The rule stated in this Subsection applies when the preceding action was brought against the present plaintiff either by a third person or by the state, and also when the present plaintiff has been led by the defendant’s tort to take legal proceedings against a third person.

(Emphasis added.) “The Restatement recognizes that the injured party in these circumstances can recover the amount reasonably expended to satisfy a judgment as well as the costs of defense.” Seidel v. Gordon A. Gundaker Real Estate Co., 904 S.W.2d 357, 363 (Mo.App.1995) (citing Restatement (Second) of Torts section 914(2) (1979)).

The Restatement rule is consistent with Missouri law. “[T]he general rule in Missouri is that attorneys’ fees are recoverable only when a statute specifically authorizes recovery or when attorneys’ fees are provided for by contract.” Essex Contracting, Inc. v. Jefferson County, 277 S.W.3d 647, 657 (Mo. banc 2009). However, an exception to the rule is often called the “collateral litigation” exception. Id. “Where the natural and proximate result of a wrong or breach of duty is to involve the wronged party in collateral litigation, reasonable attorneys’ fees necessarily and in good faith incurred in protecting himself from the injurious consequence thereof are proper items of damages.” Id. For the collateral litigation exception to be applicable, the plaintiff must have incurred attorneys’ fees in a different cause of action, involving a different party, caused by a breach of duty by the defendant. See Goralnik v. United Fire & Cas. Co., 240 S.W.3d 203, 212-13 (Mo.App.2007).

The exception for collateral litigation proximately caused by the tortious acts is also merely a matter of common sense in accordance with traditional principles allowing recovery of damages proximately caused by the negligent act. The plaintiffs must prove the breach of duty, and further must prove the damages proximately flowing from the breach. There is no hypertechnical formula about fees that may be recovered as an element of damages; neither is it an esoteric concept embedded in the shrouds of legal history. It is simply a logical exception to the general rule, and the Restatement has sought to state the principle.

Plaintiffs Randall and Rodney alleged that they were caused to pursue litigation against the Haights as a direct result of the tort of the Manring defendants. At the same time, the plaintiffs had standing to pursue a cause of action for professional negligence against the Manring defendants. See Donahue v. Shughart, Thomson & Kilroy, P.C., 900 S.W.2d 624, 627-29 (Mo. banc 1995). Thus, the plaintiffs had one set of claims against the Haights and one set of claims against the Manring defendants. And although there was a relationship between the two sets of claims, these sets of claims differed in nature and were against two different sets of defendants.

The first seven counts of the petition were all brought against the Haights, and the Haights only, seeking to compel the Haights to act in accordance with Mr. Collier’s expressed intent. The eighth count was brought against the Manring defendants and against them only. There was no need, of course, to join the eighth count in the same petition with the seven counts against the Haights; but there also was no apparent reason that the eighth count could not be joined in the same petition. To delay to bring the action could have risked problems with the statute of limitations. See, e.g., Dixon v. Shafton, 649 S.W.2d 435, 439 (Mo. banc 1983) (relating to the accrual of cause of action for legal malpractice).

Here, the trial court reasoned that the action against the Manring defendants was not a collateral action because the counts against the Haights and the Manring defendants were contained in one petition. The court did not focus on the fact that even though plaintiffs Randall and Rodney asserted their claims against both sets of defendants in one petition, and even though the claims had some common factual background, they really were two dis-tinet sets of claims against two distinct sets of defendants.

The plaintiffs alleged they were forced to sue the Haights (in order to carry out John Collier’s desires) because of Mr. Manring’s alleged failures. Of course, the plaintiffs did not have to bring an action against the Manring defendants at that time. As we have noted, they could have waited some time and then filed a separate action against the Manring defendants, although to do so might have created some risk as to the issue of timeliness. Also, plaintiffs could have filed two separate petitions with separate case numbers at the same time: one against the Haight defendants and one against the Manring defendants. If plaintiffs had taken this route, it would be clear that the collateral litigation exception applied to their suit against the Manring defendants.

It does not matter that the plaintiffs Collier were plaintiffs instead of defendants in the collateral action, as long as they were pleading that they were required to “bring” or “defend” an action as a result of the alleged negligence. See Restatement (Second) of Torts section 914(2) (1979). It also does not matter that the underlying matter had not been concluded at the time the suit for malpractice was filed. It was obvious from the pleading that the underlying action against the Haights would need to be concluded before one could determine the existence of the elements of the claim against the Manring defendants. Dixon, 649 S.W.2d at 439.

The plaintiffs might have aided the trial court had they amended their petition after settling with the Haights so that the claim against the Manring defendants was no longer pleaded specifically as a contingent, alternative claim. Had they moved to amend count VIII to assert a claim that was no longer an alternative claim, contingent on any finding of the trial court related to the underlying litigation, it might have helped make clear that the malpractice claim was collateral to the claim as to the interests in the property. Nevertheless, despite the technical pleading deficiency, the court should have recognized that the claim against the Manring defendants was collateral to the underlying seven counts against the Haights.

We conclude that the court erred in dismissing count VIII because the collateral litigation exception would allow recovery of necessary and reasonable fees caused by negligence. We determine that we should vacate and remand the case against the Manring defendants. On remand, the plaintiffs must show a breach of duty to John W. Collier by the defendants. The plaintiffs must also show (1) that undertaking the collateral litigation was the natural and proximate result of the defendant’s alleged wrong or breach of duty; (2) that the fees were necessarily and in good faith incurred to protect the plaintiffs from injury; and (3) that the amount of the fees (attributable specifically to the litigation to correct any legal problem caused by the alleged breach of duty) was reasonable in light of the circumstances and necessities of the situation. See Beavers v. McGinnis, 277 S.W.3d 308, 310 (Mo.App.2009).

The Manring defendants suggest that even apart from the issue of whether the plaintiffs can show that any negligence was committed by Mr. Manring (which they do not concede), the plaintiffs must establish that any legal fees were proximately caused by any such negligence, because, among other factors, the seven counts of the petition directed at the Haights contain allegations of wrongful conduct by Rhonda Haight in breaching her duties as a fiduciary (and in making the litigation necessary). The causation issues, as well as the issue of negligence, are not before us in the appeal. The only issue we decide here is whether as a matter of laiv the plaintiffs will be precluded in principle from seeking attorney fees by the general rule that each side will ordinarily be responsible for its own attorneys’ fees. Our ruling is that they are not so precluded.

The judgment is vacated and the case is remanded for further proceedings.

All concur.


author: MARK D. PFEIFFER, Presiding Judge.

text:
    Bruce F. BIRD, Appellant, v. MISSOURI BOARD FOR ARCHITECTS, PROFESSIONAL ENGINEERS, PROFESSIONAL LAND SURVEYORS AND LANDSCAPE ARCHITECTS, Respondent.
    No. WD 71451.
    Missouri Court of Appeals, Western District.
    May 11, 2010.

      John E. Taylor, Leawood, KS, for Appellant.
    Chris Koster, Attorney General, Daryl Hylton, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and ALOK AHUJA, Judges.
   MARK D. PFEIFFER, Presiding Judge.

Bruce F. Bird (“Bird”) appeals from the judgment of the Cole County Circuit Court (“circuit court”) dismissing Bird’s application for attorney’s fees and expenses (“fee application”) as untimely. Bird argues that he filed the fee application within thirty days of finally prevailing against the Missouri Board for Architects, Professional Engineers, Professional Land Surveyors and Landscape Architects (“Board”) in a licensing dispute. We agree.

Procedural History and Background Facts

The Board filed a complaint against Bird on May 2, 2003, alleging that he violated board regulations 4 CSR 30-3.030(7) and 4 CSR 30-13.010. On April 22, 2004, the Administrative Hearing Commission (“AHC”) held a hearing, and on November 22, 2004, authorized discipline under section 327.441.2(6) ordering Bird’s license suspended for three years followed by one year of probation. Subsequently, Bird filed a petition for judicial review on December 17, 2004. On December 30, 2005, the circuit court issued a judgment in Bird’s case, which stated:

Now on this 30th day of December, 2005, this matter is again taken up by the court for the purpose of entering its final order and judgment.
The Court, having heard the argument of counsel, having reviewed the administrative record, and being fully advised in the premises, finds the issues in favor of the Petitioner [ (Bird) ] and against Respondent [ (the Board) ].
WHEREFORE, this Court finds that the Findings of Fact, Conclusions of Law, Decision and Order of the Administrative Hearing Commission in [Cjase No. 03-0563 AR [is] unlawful, unreasonable and unsupported by substantial and competent evidence on the record as a whole. This cause is REMANDED to the Administrative Hearing Commission for rehearing and findings not inconsistent with this order.

IT IS SO ORDERED.

The Board appealed the circuit court judgment to the Missouri Court of Appeals which on June 19, 2007, dismissed the appeal and remanded the case back to the circuit court with instructions to dismiss Bird’s petition for judicial review. The Missouri Supreme Court then took transfer of Bird’s case and itself reversed the AHC’s decision on June 10, 2008. On September 3, 2008, the Missouri Supreme Court issued its mandate, and two days later, for the first time, Bird filed a fee application and a motion to recall the mandate with the Missouri Supreme Court. After Bird filed his fee application, the Board filed a “Motion to Dismiss Attorney’s Fees Application” on September 22, 2008, which argued the identical timeliness issue upon which the circuit court ultimately relied upon. The Board’s Motion to Dismiss did not, however, respond to the substance of Bird’s fee application. On September 26, 2008, the Missouri Supreme Court issued an order requesting that the Board file suggestions in opposition to Bird’s Motion for Attorney’s Fees. The September 26 order specified that “[s]aid Suggestions should set forth information regarding whether [the Board’s] position was substantially justified and/or any special circumstances that would make an award unjust.” Thus, although the Board had filed a Motion to Dismiss arguing that a threshold issue defeated any substantive analysis of Bird’s fee application, the Missouri Supreme Court responded by ordering the Board to address the merits of the application. The Board complied by filing Suggestions in Opposition on October 3, 2008. Notably, those Suggestions make no reference to the Board’s Motion to Dismiss or to the timeliness arguments raised therein. On October 30, 2008, the Supreme Court issued an order which began: “Motion to recall the mandate sustained. Mandate ordered recalled. New mandate to issue....” On November 3, 2008, the Missouri Supreme Court then issued its amended mandate, which stated, in pertinent part:

The judgment of the Circuit Court of Cole county is affirmed as modified by the opinion of this Court herein delivered and the Circuit Court of Cole County is directed to set aside its prior judgment and to issue a new judgment in conformity with this Court’s opinion. The circuit court also shall award, in the manner provided in section 536.087, RSMo 2000, what it finds to be Bruce F. Bird’s reasonable fees and expenses incurred at the agency, trial and appellate level in this litigation, and the amount thereof, unless the circuit court finds that the position of the state was substantially justified or that special circumstances make an award unjust.

(Emphasis added.)

Back at the circuit court, the Board filed a motion with the circuit court to dismiss Bird’s fee application for exactly the same reasons argued to the Missouri Supreme Court, that is, that the fee application was not timely. Pursuant to section 536.087, the circuit court concluded that Bird was required to file his fee application within thirty days of the final judgment with the court where he first prevailed. The circuit court stated that it issued its initial judgment in the cause on December 30, 2005, and upon ruling after-trial motions on March 27, 2006, the circuit court concluded that its initial judgment became final on March 27, 2006. Thus, the circuit court found section 536.087 required Bird to file his fee application in the circuit court within thirty days of March 27, 2006. However, more than two years later, Bird instead first filed a fee application with the Missouri Supreme Court on September 5, 2008. As a result, the circuit court entered its second judgment dismissing Bird’s fee application and stated that the “defect is jurisdictional, and this Court has no jurisdiction to consider the application for attorney’s fees and other expenses.” This appeal follows.

Standard of Review

This ease arises from the circuit court’s dismissal of Bird’s fee application pursuant to section 536.087. The standard of review for a circuit court’s grant of a motion to dismiss is de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).

The Mandate

In its initial judgment, the circuit court remanded the case to the AHC. In its opinion, the Missouri Supreme Court stated that there was no basis for the circuit court to remand the proceedings back to the AHC, and instead, the Missouri Supreme Court stated that “[n]or-mally, this Court would affirm or reverse the decision of [the] trial court. In this case, however, the circuit court was correct in its decision to reverse the decision of the AHC, but there was, for the reasons set forth above, no basis for remand." Bird v. Mo. Bd. of Architects, 259 S.W.3d 516, 526 n. 14 (2008) (emphasis added). Therefore, in its mandate, the Supreme Court stated that the circuit court’s judgment was “affirmed as modified by the opinion of this Court,” and the circuit court was instructed to “set aside its prior judgment and to issue a new judgment in conformity with this Court’s opinion.” (Emphasis added.)

More importantly, after Bird had filed a fee application and Motion to Recall Mandate with the Supreme Court, after the Board filed a Motion to Dismiss the fee application on the grounds that Bird’s fee application was untimely, after the Supreme Court issued an order directing the Board to address the merits of Bird’s fee application, after the Board complied and did not file suggestions relying upon a timeliness argument, and after the Supreme Court sustained the Motion to Recall Mandate, the Supreme Court issued the following instruction in its amended mandate:

The circuit court also shall award, in the manner provided in section 536.087, RSMo 2000, what it finds to be Bruce F. Bird’s reasonable fees and expenses incurred at the agency, trial and appellate level in this litigation, and the amount thereof, unless the circuit court finds that the position of the state was substantially justified or that special circumstances make an award unjust.

(Emphasis added.) The mandate’s directive that “[t]he circuit court ... shall award ... Bird’s reasonable fees and expenses” is subject to only two, specifically identified contingencies: it requires a fee award “unless the circuit court finds [1] that the position of the state was substantially justified or [2] that special circumstances make an award unjust.” To the contrary, the circuit court’s dismissal did not rely upon either of the mandate-specified conditions.

Generally speaking, “ ‘[a] mandate of an appellate court serves the purpose of communicating its judgment to a lower court. It has been described as an ‘official mode’ of communication. It is not a judgment or decree but a notification of a judgment.’ ” Moore v. Beck, 730 S.W.2d 538, 540 (Mo. banc 1987) (quoting State v. Pub. Serv. Comm’n, 360 Mo. 339, 228 S.W.2d 738, 741 (1950)). But Moore and later cases make clear that an appellate court’s mandate is not a mere transmittal. While the mandate, standing alone, may not constitute the appellate court’s judgment, the directions a lower court must follow are to be found in the mandate and the appellate court’s opinion, considered together. Moore itself explains that the “direction [to the lower court on remand] is determined not only by the terms of the mandate but also by the opinion of the appeals court which the mandate integrates.” Moore, 730 S.W.2d at 541 (emphasis altered).

Other, more recent decisions make clear that the terms of the mandate, construed in light of the appellate court’s opinion, control further proceedings in lower courts:

On remand, proceedings in the trial court should be in accordance with both the mandate and the result contemplated in the opinion. “It is well settled that the mandate is not to be read and applied in a vacuum. The opinion is part of the mandate and must be used to interpret the mandate.”

Frost v. Liberty Mut. Ins. Co., 813 S.W.2d 302, 304-05 (Mo. banc 1991) (citations omitted); see also, e.g., Associated Indus. of Mo. v. Dir. of Revenue, 918 S.W.2d 780, 782 (Mo. banc 1996); Elrod v. Elrod, 192 S.W.3d 738, 745 (Mo.App. S.D.2006); Fischer v. Brancato, 174 S.W.3d 82, 86 (Mo.App. E.D.2005); Lombardo v. Lombardo, 120 S.W.3d 232, 243 (Mo.App. W.D.2003). Indeed, this Court has recently emphasized that action on remand which is contrary to the mandate is void:

On remand, the scope of the trial court’s jurisdiction is defined by the appellate court’s mandate. “The mandate serves the purpose of communicating the judgment to the lower court, and the opinion, which is a part thereof, serves in an interpretative, function.” Following remand, the trial court is required to render judgment in conformity with the mandate. Any orders or adjudications entered by the trial court must be confined to those necessary to execute the appellate court’s judgment as set forth in the mandate. Proceedings that are contrary to the directions of the mandate are unauthorized and unenforceable.

Pope v. Ray, 298 S.W.3d 53, 57 (Mo.App. W.D.2009) (citations omitted); see also Amburn v. Aldridge, 296 S.W.3d 32, 33-34 (Mo.App. W.D.2009) (“In conducting any further proceedings following a final appellate disposition, the trial court may not modify or depart from the mandate.”).

Here, the revised mandate issued by the Supreme Court, in response to Bird’s Application for Attorney Fees and Motion to Recall Mandate, addresses an issue on which the Court’s opinion is completely silent. In these circumstances, where the mandate contains the only directions from the Supreme Court as to the disposition of Bird’s fee application, the terms of the mandate must be followed. There obviously would have been no need for the Missouri Supreme Court to sustain Bird’s Motion to Recall Mandate if it believed the time for his fee application had passed some two and a half years earlier. Moreover, sustaining the Motion to Recall Mandate certainly suggests that the Supreme Court denied the Board’s Motion to Dismiss Bird’s fee application (with which the Motion to Recall Mandate was joined). The Supreme Court could hardly sustain the Motion to Recall Mandate without necessarily concluding that the motion was not subject to dismissal.

The circuit court had no authority to ignore the directive of the Missouri Supreme Court’s mandate. Because it did, its judgment of dismissal must be reversed.

Prevailing Party Issue

Even if the Board’s timeliness objections were not foreclosed by the Supreme Court’s mandate, another ground for reversal exists: in the circumstances of this case, Bird cannot be said to have fully and finally prevailed following the circuit court’s initial disposition.

While a prevailing party may be required to assert his right to attorney’s fees under section 536.087 within thirty days of having finally prevailed, Davis v. Angoff, 957 S.W.2d 340, 343 (Mo.App. W.D.1997), the language of the circuit court’s original judgment left in doubt whether issues remained for further disposition when it ordered the cause “[RjEMANDED to the AHC for rehearing and findings not inconsistent with this order.”

The capitalized instruction that the case had been “REMANDED” to the AHC would certainly suggest that further proceedings could occur and that the possibility yet remained that Bird’s professional engineering license could be subjected to discipline. We believe there would have been reason to interpret the circuit court’s initial Order and Judgment in this fashion, because Bird had made arguments to the circuit court which would have justified a remand, rather than outright reversal. For example, Bird argued (1) that in imposing discipline the Board had considered Bird’s allegedly improper sealing of more drawings than the AHC had found to be improperly sealed; (2) that the AHC had failed to consider the effect of a new regulation governing professional engineers’ conduct; and (3) that improper closing argument had influenced the Board’s selection of the discipline to impose. Bird’s counsel repeatedly acknowledged during oral argument in the circuit court that these arguments would not justify outright reversal but merely remand. In illustration thereof, on the topic of the argument that the AHC should have considered Bird’s conduct in light of a later-promulgated regulation, Bird’s counsel argued that, if this argument was accepted:

I suppose at that point we would require you to send it back ... to the Commission ... for reconsideration of its decision. I don’t know that you can outright reverse [the] Commission's] decision based on my argument, is my point.

With regard to the argument that the Board may have imposed discipline based on the improper sealing of more drawings than the AHC’s decision would support, Bird’s counsel similarly explained that “what I’m requesting is that it be sent back to the Board for a hearing to make sure that” it considered only the improprieties found by the AHC, and no other. With respect to the improper closing argument point, Bird’s counsel likewise emphasized that the relief he was requesting was “to send it back and have them not consider that statement.”

Thus, the statement in the circuit court’s Order and Judgment that the case was being “REMANDED” could justifiably have led Bird to believe that his violation of rules of professional conduct, and/or the discipline to be imposed for any such violation, were subject to further proceedings and determination.

Indeed, the Board interpreted the Order and Judgment — at least initially — in just this fashion: the description of the case included in the Board’s Notice of Appeal states that the Board was appealing “the circuit court’s decision reversing the decision of the Administrative Hearing Commission and remanding the case for a new hearing.” (Emphasis added.)

This confusion as to the circuit court’s disposition was ultimately addressed by the Missouri Supreme Court in its opinion in the earlier appeal. The Supreme Court noted that, “[t]he circuit court was correct in its decision to reverse the decision of the AHC, but there was, for the reasons set forth [in the Supreme Court’s Opinion], no basis for remand.” Bird, 259 S.W.3d at 526 n. 14. Citing Rule 84.14, the Supreme Court accordingly modified the circuit court’s disposition from a remand to an outright reversal of the AHC. Id. Until the Supreme Court modified the circuit court’s initial judgment, however, it was unclear whether Bird had, in fact, fully and finally prevailed.

Notably, the Supreme Court did not simply interpret the circuit court’s initial Order and Judgment as an outright reversal. Instead, it modified the circuit court’s judgment to specify this outcome. The outright reversal, which triggered Bird’s duty to file a fee application under section 536.087, did not exist prior to the Supreme Court’s issuance of its Opinion and mandate, modifying the circuit court’s initial judgment to achieve that result.

During oral argument on Bird’s fee application on remand from the Supreme Court, the circuit court acknowledged that “there’s a little weakness in my order” and that “I shouldn’t have set it for rehearing, I guess.” The circuit court, nevertheless, stated that its initial decision had triggered Bird’s obligation to file a fee application, because “I don’t think I intended that the Board could have had another hearing.” The circuit court’s present judgment essentially acknowledges that its intended result in the initial judgment (as recollected 3½ years later) differed from what its initial judgment actually said:

Although the court’s December 30, 2005 order remanded the case back to the Administrative Hearing Commission with instructions that it rehear the matter and enter findings not inconsistent with the findings in the order, it was the court’s intention that the December 30, 2005, order serve as a final order and judgment.

(Emphasis added.)

The circuit court’s unexpressed intentions, which it acknowledged were in con-ffict with the written judgment it had entered, cannot justify denial of Bird’s fee application. While litigants are required to read and follow a court’s judgment, they cannot be expected to read the court’s mind. What the circuit court may have intended cannot support Bird’s loss of his statutory right to attorney’s fees in the circumstances of this case unless, upon remand to the circuit court, the circuit court expressly concludes that (1) the position of the state was substantially justified or (2) that special circumstances make an award unjust.

Conclusion

The circuit court’s judgment of dismissal is reversed and remanded with instructions to comply with the directive of the Missouri Supreme Court’s amended mandate of November 3, 2008, namely: The circuit court shall award, in the manner provided by section 536.087, what it finds to be Bird’s reasonable fees and expenses incurred at the agency, trial, and appellate levels in this litigation, and the amount thereof, unless the circuit court finds that (1) the position of the state was substantially justified or (2) that special circumstances make an award unjust.

VICTOR C. HOWARD, and ALOK AHUJA, Judges, concur.

      . Though this Court dismissed the appeal on other grounds, one of the issues that this Court requested (by letter) that the parties address in their briefing was whether the appeal had been taken from a final and appeal-able judgment. This Court's letter to the parties explained: "A review of the record on appeal in the above-referenced case indicates the lack of a final, appealable judgment. It appears that the trial court did not finally dispose of this case; rather, it remanded the case for rehearing." (Emphasis added.)

      . We recognize that a holding that Bird had not fully and finally prevailed before the circuit court and, therefore, had no obligation to file a fee application at that time, may be in tension with the fact that this Court, and the Missouri Supreme Court, ultimately both exercised appellate jurisdiction over the appeal from the circuit court's judgment and, ordinarily, a prerequisite to appellate review is that there is a final judgment, § 512.020, whereas a circuit court judgment remanding a case to an agency for further proceedings may not be final for purposes of appeal. See Tendai v. Mo. State Bd. of Registration for the Healing Arts, 77 S.W.3d 1, 2 (Mo. banc 2002). However, Tendai itself recognizes that appellate jurisdiction might exist, despite a circuit court's remand to an administrative agency, if the agency itself challenged that disposition. Id. That is exactly what occurred in this case.

      .Not so coincidentally, § 536.087.1 states: "A party who prevails in an agency proceeding or civil action arising therefrom, brought by or against the state, shall be awarded those reasonable fees and expenses incurred by that party in the civil action or agency proceeding, unless the court or agency finds that the

        position of the state was substantially justified or that special circumstances make an award unjust." (Emphasis added.)

      . This is roughly similar to civil practice in circuit courts: while a defendant’s obligation to answer the substance of a petition is stayed while a motion to dismiss is pending, if the motion to dismiss is denied, the movant is required to answer the petition on the merits.

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

      . Rule 81.05(a)(2) states:
      If a party timely files an authorized after-trial motion, the judgment becomes final at the earlier of the following: (A) Ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled; or (B) If all motions have been ruled, then the date of ruling of the last motion to be ruled or thirty days after entry of judgment, whichever is later.

        . Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), made clear that there are only two types of jurisdiction in Missouri state courts: personal jurisdiction, which refers to the power of the court to require a person to respond to a legal proceeding, and subject matter jurisdiction, which refers to the court's authority to render a judgment in a particular category of cases, namely civil or criminal. Therefore, in this case, the circuit court possessed jurisdiction. The issue of whether a fee application is timely filed is one of statutory authority.

      . We offer no commentary on whether (1) the Board was substantially justified or whether (2) special circumstances make an award of fees unjust in our ruling today. As stated previously, the Supreme Court requested legal suggestions on these topics before sustain-tag the Motion to Recall Mandate. Instead of making the ruling itself, our Supreme Court felt that the circuit court was in a better position than the appellate courts to make this decision, and hence, this was the purpose for its mandate directing the circuit court to examine those issues and decide whether either exception to an award of fees existed and, absent the same, to determine the appropriate amount of fees to be awarded to Bird.

      . As stated previously herein, this Court actually communicated to the parties in the first appeal that “[i]t appears that the trial court did not finally dispose of this case; rather, it remanded the case for rehearing.”

      . Given the fact that Bird's various arguments supported different relief (reversal of the specific discipline imposed versus reversal of the finding that his license was even subject to discipline; remand for further proceedings versus remand solely for purposes of vacation of the discipline previously imposed), it is unfortunate that the circuit court's initial Order and Judgment did not more specifically identify which of Bird's arguments it had accepted and exactly what relief it was awarding.

      . In Greenbriar Hills Country Club v. Director of Revenue, 47 S.W.3d 346, 350 (Mo. banc 2001), the Missouri Supreme Court referenced the fact that, procedurally, Greenbr-iar filed its fee application in three separate forums, acknowledging that Greenbriar was confused as to which forum was appropriate under the statute. Certainly, the Missouri Supreme Court did not penalize Greenbriar for exercising an abundance of caution in this regard. It follows that a party in this setting might well be guided by the principle that when there is doubt on the issue of whether a party has prevailed, the safer practice is to file a fee application in any or all possible forums that may constitute the forum of “final disposition” or "final judgment.”

      . The phrase “[i]n the manner provided by section 536.087” necessarily refers to the statutorily required method of Bird’s submission of a fee application, including but not limited to, an itemized statement of actual time expended and expenses incurred, § 536.087.3; circuit court resolution by a written decision separate from the underlying judgment, including written findings and conclusions, § 536.087.6; and limits placed on the hourly rates that can be collected for attorney and expert time, § 536.087.1 (incorporating the limitations found in § 536.085(4)).


author: ALOK AHUJA, Judge.

text:
    Woodrow ANDERSON, Appellant, v. Larry CRAWFORD, Respondent.
    No. WD 70300.
    Missouri Court of Appeals, Western District.
    May 11, 2010.

      Woodrow Anders, pro se.
    Stephen D. Hawke, Esq., Jefferson City, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART and ALOK AHUJA, JJ.
   ALOK AHUJA, Judge.

Woodrow Anderson appeals the grant of judgment on the pleadings in favor of the Department of Corrections in his declaratory judgment action, which seeks credit for time served on the twenty-year concurrent sentences for which he is presently incarcerated. Because we conclude that Anderson’s claims raise factual issues that cannot be resolved solely on the basis of the pleadings, the judgment is reversed and the case remanded for further proceedings.

Factual Background

In October 1995, Anderson was on parole from a twelve-year sentence for a robbery conviction (the “first conviction”) when he was arrested and charged with one count of robbery in the first degree and armed criminal action. Based on his arrest on the new charges, Anderson’s parole was revoked on the first conviction, and he was returned to the custody of the Department of Corrections.

After the revocation of his parole on the first conviction, Anderson was found guilty of the new charges of robbery and armed criminal action in August 1996 (his “second conviction”). He was sentenced as a prior and persistent offender to twenty years’ imprisonment on each count, with the sentences to be served concurrently to each other, and concurrently to his sentence on the first conviction. Anderson’s petition alleges that “[o]n September 3,1996, plaintiff was returned to the Missouri Department of Corrections, as ordered to serve his concurrent sentences.”

Anderson appealed the second conviction to the Southern District of this Court. According to his petition:

On May 5, 1997, while serving his conviction — concurrent sentences, plaintiffs family posted Appeal Bond on the [second] conviction, not knowing that plaintiff could not post bond after parole revocation. [See Exhibit “B”]. Therefore, plaintiff [WAS NOT] released from prison on the Appeal Bond, but continued serving time in prison.[]

On October 27, 1997, the Southern District affirmed Anderson’s second conviction in State v. Anderson, 953 S.W.2d 646 (Mo.App. S.D.1997).

Anderson was released by the Department on April 18,1998. His petition alleges that he was released on a “Director’s Release” because he had completed serving the sentence on his first conviction, and despite the fact that he remained subject to the twenty-year sentences on his second conviction. Anderson’s petition alleges that, at the time of his release, he was unaware of the Southern District’s affirmance of his second conviction. Further, he alleges that “[a]fter being released, month after month, for almost two years, plaintiff would check with the Mississippi County Sheriff Department to see if they had heard anything concerning his appeal” of the second conviction.

Anderson remained at large for almost two years, until April 4, 2000, when an arrest warrant was issued by the Southern District (2 1/2 years after the affirmance of Anderson’s second conviction). Anderson alleges that he was arrested at his home the same day. He was returned to the custody of the Department on April 21, 2000.

Following his return to the Department’s custody, Anderson received a “face sheet” from the Department indicating that, in calculating the time Anderson had served on his sentences on the second conviction, the Department excluded the entire period from May 2, 1997 (roughly the date on which the appeal bond was posted) through April 21, 2000 (the date on which Anderson alleges he was returned to the Department’s custody). The copy of the face sheet attached to Anderson’s petition contains the following handwritten note: “Once you make Bond on a sentence, it is considered stopped, even though you are held in prison on other charges.”

Anderson filed the current lawsuit on September 24, 2007, after exhausting his administrative remedies, to challenge the Department’s exclusion of the period from May 2,1997 through April 21, 2000, a total of 1,082 days, in calculating his time served on the second conviction. The Department answered, and subsequently filed a motion for judgment on the pleadings. The trial court granted the Department’s Motion and entered judgment on the pleadings in its favor. Citing § 558.031.1 and Mashek v. Mitchell, 940 S.W.2d 1 (Mo.App. W.D.1997), the trial court reasoned that, “[b]ecause [Anderson] was on appeal bond status for his two [twenty-]year sentences between May 5, 1997 and April 21, 2000, he is not entitled to jail time credit towards service[ ] of the twenty year sentence[s].” Although the court recognized that Anderson remained incarcerated “because he was serving an unrelated sentence” during at least a portion of the period at issue, it nevertheless concluded that, “for the current sentences, petitioner was on appeal bond.”

Anderson appeals.

Standard of Review

“The party moving for judgment on the pleadings admits, for purposes of the motion, the truth of all well pleaded facts in the opposing party’s pleadings. The position of a party moving for judgment on the pleadings is similar to that of a movant on a motion to dismiss, ie., assuming the facts pleaded by the opposite party to be true, these facts are nevertheless insufficient as a matter of law.”
When reviewing a judgment on the pleadings for a defendant, we accept as true all facts alleged in the plaintiffs petition.... The pleadings are liberally construed and all alleged facts are accepted as true and construed in a light most favorable to the pleader....
A motion for judgment on the pleadings should not be sustained where a material issue of fact exists. In other words, a judgment on the pleadings will be affirmed “only where under the conceded facts, a judgment different from that pronounced could not be rendered notwithstanding any evidence which might be produced.”

Armstrong v. Cape Girardeau Physician Assocs., 49 S.W.3d 821, 824 (Mo.App. E.D.2001) (citations omitted).

Analysis

Anderson’s claims on appeal divide the 1,082 days for which he was denied credit into two separate periods:

(1) from the inception of the appeal bond (alleged to be May 5, 1997) up to the date of his release on April 18, 1998, following the completion of his sentence on the first conviction (which we denominate “Period 1”); and
(2) the period during which he was released, April 18, 1998, to April 21, 2000 (“Period 2”).

We likewise consider these two time periods separately in the Analysis which follows.

I.

We first examine Anderson’s right to credit for the time in Period 1. Section 558.031.1, RSMo 2000, provides in relevant part that “[a] sentence of imprisonment shall commence when a person convicted of a crime in this state is received into the custody of the department of corrections or other place of confinement where the offender is sentenced.” Based on the allegations of Anderson’s petition, he was returned to the custody of the Department following sentencing on the second conviction on September 3,1996, and began serving his new sentences at that time. Under the quoted language of § 558.031.1, the time Anderson served in prison after that date would normally be applied against his sentences on the second conviction, day-for-day.

Citing Mashek v. State ex rel. Mitchell, 940 S.W.2d 1 (Mo.App. W.D.1997), the State argues that “[n]othing in [§ 558.031.1] authorizes the Department of Corrections to award an offender credit for time spent on an appeal bond.” But Mashek does not hold that “time spent on an appeal bond” is excluded from time served; instead, Mashek holds that “[t]he statute does not require that the time a person is free on bail following a conviction pending appeal be credited against the sentence imposed.” Id. at 3 (emphasis added). Or, as stated in another case, “[a] defendant who is on bond, is not in jail or custody, and the law does not allow credit against a sentence for time spent free on bail.” Bates v. Mo. Dep’t of Corr., 986 S.W.2d 486, 489 (Mo.App. W.D.1999) (emphasis added); see also State v. Williams, 978 S.W.2d 454, 460 (Mo.App. E.D.1998) (“the defendant is not entitled to credit for time while free from custody on bail” (emphasis added)).

Here, according to Anderson’s petition he was not, during Period 1, “free on bail.” Rather, Anderson’s petition alleges that he remained incarcerated despite his family’s mistaken posting of the appeal bond, through the affirmance of his conviction by the Southern District. Moreover, if a defendant “on bond” is one who is “not in jail or custody,” Bates, 986 S.W.2d at 489, Anderson once again fails to qualify. From all that appears, the conditions of Anderson’s confinement were not affected in any way by the filing of the appeal bond. In these circumstances, we cannot agree with the trial court that the mere posting of the appeal bond “freed” Anderson from his sentences on the second conviction to such a degree that he can be held to have forfeited his right to credit for the time he served during Period 1.

Indeed, given that Anderson was subject to incarceration based on the revocation of his parole on his first conviction at the time the appeal bond was apparently posted, we question whether he was even eligible for an appeal bond on the second conviction. Supreme Court Rule 30.16 provides that an appeal bond may be established “[i]f a convicted defendant is entitled to a conditional release pending an appeal.” But a convicted defendant who is subject to incarceration for other, final convictions is not “entitled to a conditional release pending an appeal.” See State ex rel. Mack v. Purkett, 825 S.W.2d 851, 853 (Mo. banc 1992) (entertaining challenge by habeas corpus to parole revocation even though petitioner presently incarcerated on a separate conviction which was pending on appeal; noting that, “[b]ut for the parole revocation, petitioner would be entitled to conditional release” on the other conviction on an appeal bond (emphasis added)); Belton v. Moore, 112 S.W.3d 1, 4 (Mo.App. W.D.2003) (noting that defendant serving a sentence based on a separate, prior criminal conviction not eligible for bail pending trial and sentencing on new charge).

For these reasons, we conclude that the simple fact that an appeal bond was posted for Anderson’s second conviction does not disqualify him from seeking credit for the time during which he remained incarcerated from May 5, 1997, through April 18, 1998. The circuit court’s dismissal of this claim must be reversed, and remanded for further proceedings.

II.

The fact that Anderson’s pleading states a claim for credit for time served for Period 1, a period of almost one year, requires that we reverse the trial court’s judgment. While what we have said to this point mandates reversal, we offer the following discussion of Anderson’s potential entitlement to credit for the time in Period 2, to guide the further proceedings which will occur on remand.

The Department asserts that Anderson was released on the appeal bond in April 1998, and that time credit for Period 2 is therefore unavailable. Based on the allegations of Anderson’s petition, however, his release in April 1998 cannot be justified by the previous posting of an appeal bond in May 1997, because the appellate proceedings concerning Anderson’s second conviction concluded months prior to his April 1998 release. As the name implies, an appeal bond is only available to a defendant during the -pendency of an appeal. See Application of Holt, 518 S.W.2d 451, 453 (Mo.App.1975) (“In the absence of a valid!, pending] appeal, Petitioner has no claim to release on an appeal bond.”; holding that petitioner had no right to appeal bond where, despite filing of notice of appeal from criminal conviction, petitioner had failed to timely pay docketing fee or secure order granting him right to proceed in forma pauperis). This is the plain implication of Supreme Court Rule 83.01(a), which provides:

Any person convicted of an offense entitled to be released upon appeal shall be released upon appeal until adoption by the court of an opinion affirming the judgment of conviction. The affirming court may, by special order, permit the defendant to remain on bond after affir-mance pending determination of after-affirmance motions or applications.

By providing that a convicted defendant’s right to release pending appeal continues only “until the adoption by the court of an opinion affirming the judgment of conviction,” and by specifying that the court may “by special order” permit a defendant to remain on bond pending the resolution of any post-decision motions, Rule 33.01(a) prevents an appeal bond from continuing indefinitely following the affirmance of a criminal conviction and conclusion of appellate proceedings.

We are thus left with what appears to be — -according to Anderson’s pleading — an erroneous decision by the Department of Corrections to release him. We do not definitively address Anderson’s entitlement to credit for Period 2, pending further factual development as to the circumstances of his release and subsequent rearrest. However, we note that Missouri decisions recognize the possibility that an inmate who is free from fault may be entitled to credit for time he is at liberty following his erroneous release during the service of a criminal sentence. Thus, in Jackson v. Kaiser, 353 Mo. 919, 185 S.W.2d 784 (1945), the Supreme Court noted that an inmate generally has a right to serve his term of imprisonment continuously:

We agree with the petitioner that he cannot be compelled to serve his sentence in installments. “A prisoner has some rights. A sentence of five years means a continuous sentence, unless interrupted by escape, violation of parole, or some fault of the prisoner, and he cannot be required to serve it in installments.”

Id. at 787 (quoting White v. Pearlman, 42 F.2d 788, 789 (10th Cir.1980)). More recently, we explained that the Tenth Circuit decision cited in Jackson recognized an inmate’s entitlement to credit for time at liberty, where the inmate was erroneously released during the service of his sentence through no fault of his own:

An example of being forced to serve a term in installments can be found in White v. Pearlman, 42 F.2d 788 (10th Cir.1930), which was cited by the court in Jackson. In White, the prisoner was mistakenly released early. Id. at 789. He attempted to correct the situation, but he was sent home where he remained until more than two years later he was told that he was wanted. Id. Under these unique facts, the court held:
“A prisoner has some rights. A sentence of five years means a continuous sentence, unless interrupted by escape, violation of parole, or some fault of the prisoner, and he cannot be required to serve it in installments. Certainly a prisoner should have his chance to re-establish himself and live down his past. Yet, under the strict rule contended for by the warden, a prisoner sentenced to five years might be released in a year; picked up a year later to serve three months, and so on ad libitum, with the result that he is left without even a hope of beating his way back. It is our conclusion that where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole, that his sentence continues to run while he is at liberty.” Id.

Bantle v. Mo. Bd. of Prob. & Parole, 256 S.W.3d 205, 207 n. 2 (Mo.App. W.D.2008).

Here, Anderson’s petition alleges that he did not know at the time of his release that his second conviction had been affirmed, and made periodic inquiries of law enforcement officials as to the status of his appeal. From all that appears on the limited record before us, it may be that Anderson was not culpable in connection with his (apparently erroneous) release, and that the State bears sole responsibility for his temporary freedom. In these circumstances, we cannot say that “ ‘under the conceded facts, a judgment different from that pronounced could not be rendered notwithstanding any evidence which might be produced.’ ” Armstrong, 49 S.W.3d at 824 (citation omitted).

Conclusion

The circuit court’s entry of judgment on the pleadings in the Department’s favor is reversed, and the case remanded for further proceedings consistent with this opinion. As stated at the outset, see supra note 1, nothing in this opinion should be read to pre-determine the facts as they may actually exist; finding the facts is a task better left to the trial court on remand. Obviously, Anderson’s right to any or all of the relief he seeks will depend on the facts as found by the circuit court on remand, and we express no view on the ultimate merits of Anderson’s claims at this time.

All concur.

      . Because Anderson appeals from the grant of judgment on the pleadings, the facts set forth below are derived from his petition, and, for the purposes of our review, are assumed to be true. Nothing in this opinion should be read to limit the trial court’s fact-finding on remand.

      . The copy of the appeal bond attached to Anderson’s petition appears to have been signed by Anderson. Although Anderson’s signature was apparently executed during his incarceration, it is attested by a Texas notary. The document is not file-stamped. Obviously, any issues concerning the circumstances of this appeal bond can be developed, as necessary, on remand.

      . Based on the allegations of Anderson’s petition, it may be that he could make separate, minor challenges to the beginning and ending dates for the "exclusion period" employed by the Department. Thus, the Department began the period for which Anderson was denied time-served credit on May 2, 1997, although Anderson alleges in his petition that the appeal bond was not posted until May 5, 1997. Further, the Department denied Anderson credit through April 21, 2000, even though Anderson’s petition alleges that he was re-arrested for his second conviction on April 4, 2000, and then remanded to the Department's custody on April 21.

      . The State does not dispute that this declaratory judgment action is the appropriate mechanism for Anderson to obtain judicial review of the Department's calculation of the time he has served toward his sentences. See Stinson v. Sharp, 80 S.W.3d 852, 854 (Mo.App. S.D.2002); Bates v. Mo. Dep't of Corr., 986 S.W.2d 486, 488-89 (Mo.App. W.D.1999); Mashek v. State ex rel. Mitchell, 940 S.W.2d 1, 2-3 (Mo.App. W.D.1997).

      . We recognize that decisions of federal courts and the courts of other states apply the "equitable doctrine” recognized in Jackson and Bantle in various ways. For example, decisions in different jurisdictions apparently take differing approaches to the question whether an inmate's knowledge that his release is erroneous, standing alone, disqualifies him from receiving credit for time at liberty. See discussion in Anderson v. Houston, 274 Neb. 916, 744 N.W.2d 410, 420-23 (2008). Those decisions may also differ as to whether an inmate must undertake efforts to notify authorities of his erroneous release, and, if so, what efforts are required. See id.; Anderson v. Houston, 277 Neb. 907, 766 N.W.2d 94, 101 (2009) (decision on appeal after remand). Because we are reviewing the trial court's entry of judgment on the pleadings, and given that the case must be remanded for further proceedings regardless of Anderson’s right to credit for the time in Period 2, we defer further discussion of these issues until a more fully developed factual record is presented.


author: KENNETH M. ROMINES, Chief Judge.

text:
    Dyami PURDY, Claimant/Appellant, v. SUNSWEPT APARTMENTS, and Division of Employment Security, Respondents.
    No. ED 94379.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 11, 2010.
    Dyami Purdy, Spanish Lake, MO, pro se.
    Sunswept Apartments, Florissant, MO, pro se.
    Michael Pritchett (Div. of Employment Security), Jefferson City, MO, for respondents.
   KENNETH M. ROMINES, Chief Judge.

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

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

Section 288.210, RSMo 2000, requires that a claimant file a notice of appeal to this Court from the Commission’s decision within twenty days of the decision becoming final. The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. “Section 288.200 RSMo does not provide for late filing and does 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).

Here, the Commission mailed its decision to Claimant on January 5, 2010. Therefore, the notice of appeal to this Court was due on or before February 4, 2010. Sections 288.200.2, 288.210. Claimant mailed his notice of appeal to the Commission. Under section 288.240, RSMo 2000, a notice of appeal that is mailed to the Commission is “deemed to be filed as of the date endorsed by the United States post office on the envelope.... ” Here the date endorsed by the United States post office was February 5, 2010. As a result, Claimant’s notice of appeal is untimely.

An untimely notice of appeal deprives this Court of jurisdiction to entertain the appeal and we must dismiss it. Wancel v. DT Management, LLC, 299 S.W.3d 49, 50 (Mo.App. E.D.2009). The Division’s motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction.

NANNETTE A. BAKER, and ROY L. RICHTER, JJ., concur.


author: PER CURIAM.

text:
    Damon STARKS, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93023.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 11, 2010.
    Jo Ann Rotermund, St. Louis, MO, for appellant.
    Chris Koster, Mary H. Moore, Jefferson City, MO, for respondent.
    Before: KURT S. ODENWALD, P.J., GEORGE W. DRAPER, III, J., and GARY M. GAERTNER, JR., J.
   PER CURIAM.

Damon Starks (Movant) appeals from the judgment denying his motion for post-conviction relief under Rule 24.035 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 precedential value and we affirm by written order. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Betty CROGHAN, Claimant/Appellant, v. ARCH COAL, INC., and Division of Employment Security, Respondents/Respondents.
    No. ED 94018.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 11, 2010.
    Betty Croghan, O’Fallon, MO, Acting pro se.
    Arch Coal, Inc., St. Louis, MO, Acting pro se.
    Rachel M. Lewis, Division of Employment Security, Jefferson City, MO, for Respondent.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Betty Croghan appeals from the decision of the Labor and Industrial Relations Commission (Commission) denying her claim for unemployment benefits. We have reviewed the briefs of the parties and the record on appeal and conclude that the Commission, based upon the whole record, could have reasonably made its findings and reached its result. Shields v. P & G Paper Prods. Co., 164 S.W.3d 540, 543 (Mo.App. E.D.2005). 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).


text:
    John KENNETT, Appellant, v. GRAHAM PACKAGING COMPANY and Division of Employment Security, Respondents.
    No. ED 93842.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 11, 2010.
    John J. Ammann, Jason B. Going, Saint Louis University Law Clinic, Saint Louis, MO, for Appellant.
    Ninion S. Riley, Jefferson City, MO, for Respondent Division of Employment Security.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

John Kennett (“Claimant”) appeals the decision of the Labor and Industrial Relations Commission affirming and adopting the decision of the Appeals Tribunal denying Claimant unemployment benefits. We find that the Commission did not err in affirming and adopting the decision of the Appeals Tribunal. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The decision is affirmed under Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Alcee FOREMAN, III, Appellant.
    No. ED 93733.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 11, 2010.
    Lisa M. Stroup, St. Louis, MO, for Appellant.
    Christopher A. Koster, Attorney General, Shaun J. Mackelprang, Asst. Attorney General, Jefferson City, MO, for Respondent.

      Before SHERRI B. SULLIVAN, P.J. and ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ.
   ORDER

PER CURIAM.

Alcee Foreman, III (“Movant”) appeals from the denial of his Rule 24.035 motion for post-conviction relief without an evi-dentiary hearing. Movant contends the motion court erred in denying his motion without an evidentiary hearing because he asserted facts not refuted by the record that he pleaded guilty involuntarily, unknowingly, and unintelligently (1) due to plea counsel’s failure to advise Movant that if he proceeded to trial, he would have the right to testify on his own behalf, even if counsel did not want him to, and (2) due to plea counsel’s failure to advise Movant that he would have to follow all of the rules of the treatment program or risk being terminated from the program and having to serve his sentences.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. The motion court’s findings of fact and conclusions of law are not clearly erroneous. Rule 24.035(k). An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Torrey LINDSEY, Appellant.
    No. ED 93645.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 11, 2010.
    Andrew E. Zleit, Saint Louis, MO, for Appellant.
    Chris Foster, Attorney General, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN NORTON, P.J., MARY K. HOFF, J. and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Torrey Lindsey appeals the judgment entered upon a jury verdict convicting him of second-degree trafficking. We find that the trial court did not err in overruling Lindsey’s objection to testimony regarding an anonymous tip, nor did the court err in excluding certain testimony at trial. An extended opinion would have no prece-dential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. The judgment of the trial court is affirmed under Rule 30.25(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Dwayne WINGO, Defendant/Appellant.
    No. ED 93519.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 11, 2010.
    Nancy A. McKerrow, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, John M. Reeves, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Dwayne Wingo (Defendant) appeals from the judgment upon his conviction by a jury for one count of first-degree robbery, in violation of Section 569.020. The trial court sentenced Defendant to twenty-six years’ imprisonment. We affirm.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the remaining 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 30.25(b).

      . Unless otherwise indicated, all statutory references are to RSMo 2000.


text:
    Jerry PLUMMER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93394.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 11, 2010.
    JoAnn Rotermund, St. Louis, MO, for Appellant.
    Shaun J. Mackelprang, Jamie P. Rasmussen, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J., GEORGE W. DRAPER III, J, and GARY M. GAERTNER, JR., J.
   ORDER

PER CURIAM.

Jerry Plummer (hereinafter, “Movant”) appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. In his first point on appeal, Movant alleges the motion court clearly erred when it declined to find plea counsel ineffective for failing to explain the difference between a civil nonsupport proceeding and a criminal nonsupport proceeding, rendering his plea involuntary, unknowing, and unintelligent. In his second point on appeal, Movant claims the motion court clearly erred when it declined to find probation revocation counsel ineffective for failing to advocate on his behalf.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. Hartman v. State, 130 S.W.3d 727, 728 (Mo.App. E.D.2004). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

We affirm the motion court’s denial of Movant’s Rule 24.035 motion pursuant to Rule 84.16(b).


text:
    Walter LUCKETT, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93393.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 11, 2010.
    Mark A. Grothoff, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Shaun J. Mackelprang, Asst. Attorney General, Jefferson City, MO, for Respondent.
   ORDER

PER CURIAM.

Walter L. Luckett (“Movant”) appeals from the judgment of the motion court denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Movant argues the motion court clearly erred in denying his 29.15 motion for post-conviction relief because his trial counsel was ineffective for failing to investigate and call Darrel Holloway (a.k.a. Ralph Poe), whose testimony would have provided Movant with a complete defense by establishing that the drugs found by the police belonged to Holloway and that Movant did not know about the drugs.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    Remirus L. SHAW, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93329.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 11, 2010.

      Lisa M. Stroup, Assistant Public Defender, St. Louis, MO, for appellant.
    Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before SHERRI B. SULLIVAN, P.J., ROBERT G. DOWD, JR., and PATRICIA L. COHEN, JJ.
   ORDER

PER CURIAM.

Remirus Shaw (Movant) appeals the judgment of the Circuit Court of the City of St. Louis denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant claims the motion court erred in denying a hearing on his claims that his plea counsel was ineffective for: (1) inducing Movant’s guilty plea by promising drug treatment pursuant to Mo.Rev.Stat. § 217.362; and (2) failing to file and litigate a motion to disclose the identity of a confidential informant.

We have reviewed the briefs of the parties and the record on appeal and find the motion court’s decision was not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision.

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


text:
    Robert CHANCELLOR, Appellant, v. CITY OF CANTON and Division of Employment Security, Respondents.
    No. ED 93325.
    Missouri Court of Appeals, Eastern District, Northern Division.
    May 11, 2010.
    Brett B. Bozarth, Canton, MO, for Appellant.
    John B. Morthland, Amy L. Ohnemus, Hannibal, MO, for City of Canton.
    Shelly A. Kintzel, Jefferson City, MO, for Mo. Dept, of Labor & Ind. Rel.
    Before ROY L. RICHTER, P.J., ROBERT G. DOWD, JR., J., and KURT S. ODENWALD, J.
   ORDER

PER CURIAM.

Robert Chancellor (“Claimant”) appeals the Labor and Industrial Relations Commission’s (“Commission”) reversal of the Appeals Tribunal’s decision granting Claimant unemployment benefits. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.

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


text:
    Larry HOWARD, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 93293.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 11, 2010.
    Jo Ann Rotermund, Assistant Public Defender, Public Defenders Office of State Courts Administrator, St. Louis, MO, for Appellant.
    Chris Koster, Attorney General, Jamie Pamela Rasmussen, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GLENN A. NORTON, P.J., MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.
   ORDER

PER CURIAM.

Larry Howard (Movant) appeals from the judgment denying his motion for post-conviction relief under Rule 29.15 without an evidentiary hearing. Movant was convicted of one count of second-degree trafficking, in violation of Section 195.223, for which Movant had been sentenced to thirteen years’ imprisonment. 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. The judgment of the motion court is based on findings of fact that are not clearly erroneous. Rule 84.16(b)(2). No error of law appears. An extended opinion would have no prece-dential value. We affirm the judgment pursuant to Rule 84.16(b). The parties have been furnished a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).

      . Unless otherwise indicated, all statutory references are to RSMo 2000.


author: PER CURIAM:

text:
    Thomas GIBBS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71023.
    Missouri Court of Appeals, Western District.
    May 18, 2010.
    Mark A. Grothoff, for appellant.
    Dora A. Fichter, for respondent,

      Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and ALOK AHUJA, Judge.
   ORDER

PER CURIAM:

Thomas Gibbs appeals the judgment of the trial court denying his Rule 29.15 motion for postconviction relief following an evidentiary hearing. He sought to vacate his convictions for robbery in the first degree, section 569.020, RSMo 2000, and felony resisting arrest, section 575.150, RSMo Cum Supp.2009, and concurrent sentences of eighteen years and four years imprisonment, respectively. He contends that his trial and appellate counsel were ineffective for failing to seek suppression of evidence at trial and to raise on direct appeal a claim that his arrest was not supported by probable cause.

The judgment is affirmed. Rule 84.16(b).


text:
    In the Matter of the CARE AND TREATMENT OF Samuel WOODS, a/k/a Samuel L. Woods, a/k/a Samuel Lyle Woods, a/k/a Samuel L. Wood, a/k/a Samuel Lyle Woods, Jr., a/k/a Samuel L. Woods, Jr., a/k/a Samuel Wood, a/k/a Sammuel L. Woods, a/k/a Sammuel Lyle Woods, a/k/a Sammuel Lyle Woods, Jr., a/k/a Sammuel Woods, a/k/a Sammy Woods, a/k/a Sammy Lyle Woods, a/k/a Sam Woods, a/k/a Woody, a/k/a Charlie Woods, a/k/a Charlie, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70797.
    Missouri Court of Appeals, Western District.
    May 18, 2010.
    Emmett D. Queener, Assistant State Public Defender, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and ALOK AHUJA, Judges.
   Order

PER CURIAM:

Samuel Woods appeals the Circuit Court of Johnson County’s Probate Division judgment committing Woods to the Department of Mental Health for care, custody, and control as a sexually violent predator. Woods argues that the judgment was not based on clear and convincing proof that a mental abnormality currently exists that makes him more likely than not to sexually reoffend. We disagree and affirm in this per curiam order. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. David F. FRAKES, Appellant.
    No. WD 70562.
    Missouri Court of Appeals, Western District.
    May 18, 2010.
    Rosalynn Koch, for Appellant.
    Jamie P. Rasmussen, for Respondent.
    Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and ALOK AHUJA, Judge.
   ORDER

PER CURIAM:

David Frakes appeals his conviction for first-degree statutory sodomy, section 566.062, RSMo Cum.Supp.2009, and sentence of twenty-five years imprisonment. He claims that the trial court erred in overruling his motion for new trial based on misrepresentations by the prosecutor in closing argument and in permitting certain expert testimony.

The judgment of conviction is affirmed. Rule 30.25(b).


text:
    Mark YOUNGER, Respondent, v. Greg STIENS, Appellant.
    No. WD 69927.
    Missouri Court of Appeals, Western District.
    May 18, 2010.
    Robert E. Sundell, Esq., Maryville, MO, for appellant.
    Greg L. Stiens, Appellant Acting Pro Se, for respondent.
    Before Division One: LISA WHITE HARDWICK, Presiding Judge, JAMES M. SMART, JR. and ALOK AHUJA, Judges.
   ORDER

PER CURIAM.

Greg Stiens appeals from a judgment entered against him in an interpleader action. For reasons explained in a Memorandum provided to the parties, we find no error and affirm the judgment. We also deny the Respondent Mark Younger’s Motion to Dismiss the appeal.

JUDGMENT AFFIRMED. Rule 84.16(b).


text:
    Sarah MATTSON, Appellant, v. Daren K. MATTSON, Respondent.
    No. WD 71238.
    Missouri Court of Appeals, Western District.
    May 18, 2010.
    Scott C. Hamilton, Lexington, MO, for appellant.
    Daren K. Mattson, respondent, acting pro se.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and GARY D. WITT, JJ.
   ORDER

PER CURIAM:

Sarah Mattson appeals the trial court’s judgment in favor of Daren Mattson on her proposal to relocate with the couple’s two minor children. She says the court erred in finding that she sought relocation in bad faith and in excluding evidence about domestic abuse as it related to the children’s best interests. The judgment is affirmed. Rule 84.16(b).