author: JOSEPH M. ELLIS, Judge.

text:
    LAKERIDGE ENTERPRISES, INC., Respondent, v. James KNOX, Individually and as Successor Trustee of the Albert Stockman Revocable Trust and the Nora Stockman Revocable Trust, et al., Appellant.
    No. WD 70444.
    Missouri Court of Appeals, Western District.
    Feb. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2010.
    Application for Transfer Denied June 29, 2010.

      James T. Buckley, for Appellant.
    Benjamin S. Creedy, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, P.J., VICTOR C. HOWARD, J. and JAMES E. WELSH, J.
   JOSEPH M. ELLIS, Judge.

James Knox, individually and as successor trustee of the Albert Stockman Trust, appeals from a judgment entered in the Circuit Court of Saline County in favor of Lakeridge Enterprises, Inc. in an action filed by Lakeridge asserting claims of misrepresentation and breach of contract. For the following reasons, the trial court’s judgment is reversed in part.

On September 27, 2001, Albert Stock-man created the Albert Stockman Revocable Trust and designated himself as the Trustee. That same day, Nora Stockman created the Nora Stockman Revocable Trust and designated herself as the Trustee. Subsequently, Mr. and Mrs. Stock-man placed an undivided one-half interest in the family farm into each of the trusts.

Mrs. Stockman died on August 6, 2004, leaving James Knox as the Successor Trustee of the Nora Stockman Revocable Trust. Mr. Stockman died on January 5, 2005, and Knox then also became the Successor Trustee of the Albert Stockman Revocable Trust.

Later that Spring, Knox placed an advertisement in the newspaper offering the real estate for sale. Corey Carney, acting on behalf of Lakeridge, notified Knox that the company was interested in purchasing the property. During the course of negotiations, Carney informed Knox that Lake-ridge intended to use the property as part of an exchange of property under Section 1031 of the Internal Revenue Code to defer tax liability and that timely transfer of the property was of the essence.

On October 17, 2005, Lakeridge and Knox, acting as Trustee for the Albert Stockman Revocable Trust, executed a contract for the sale of a portion of the farm real estate held in the two trusts. Under the contract, Lakeridge was to receive 262 acres of farmland for $450,000.00, and the sale was to close on December 16, 2005.

Ultimately, the title company determined that Knox did not have authority under the trusts to sell the property and refused to issue a title policy. The property was not conveyed on December 16, 2005. The title company later mailed the earnest money back to Lakeridge.

Knox, as successor trustee for both trusts, subsequently distributed the farmland to the eight descendents of settlors Albert Stockman and Nora Stockman. After a partition suit was filed by one of the descendents, the land was sold at a partition sale to some of the descendents. The descendents that purchased the farmland eventually sold the land to Lakeridge for $490,000.00.

On March 31, 2006, Lakeridge filed a petition against Knox as successor trustee of the Albert Stockman Revocable Trust and Nora Stockman Revocable Trust and the beneficiaries of those trusts. Lake-ridge asserted claims of breach of contract and fraudulent misrepresentation. On October 15, 2007, Lakeridge filed a motion for leave to file its first amended petition that added Knox as a defendant in his individual capacity.

On September 15, 2008, after the parties waived their right to a jury trial, the case was tried to the court. The trial court subsequently issued its judgment in favor of Lakeridge and against Knox, both individually and as trustee for the Albert Stockman Revocable Trust, on its claims of breach of contract and negligent misrepresentation. The court awarded $67,655.00 in actual damages, $29,491.00 in attorney’s fees, and $4,326.44 in interest. The remaining defendants were found not liable.

Knox, individually and as successor trustee for the Albert Stockman Revocable Trust, brings eight points on appeal from that judgment. In his first point, Knox claims that the trial court erred in finding that the contract for the sale of the real estate was breached by the failure to convey title because obtaining title insurance was a condition precedent for the contract to be effective. He further argues that Lakeridge terminated the contract when it failed to return the refund of its earnest money from the title company. In his second point, Knox argues that the trial court erred in entering judgment against him in his personal capacity on the breach of contract count because the petition failed to state a claim against him individually. In his third point, Knox claims that the judgments against him individually are void because he was never properly made party to the case in his individual capacity. In the fourth point, Knox contends that he, individually, was denied due process under the due process clauses of the Fourteenth Amendment to the United States Constitution and of article 1, section 10 of the Missouri constitution because he was not properly served in his individual capacity. In his fifth point, Knox claims that the trial court erred in entering judgment against him on Lakeridge’s misrepresentation claim because the petition failed to sufficiently plead a claim for fraudulent misrepresentation. In his sixth point, Knox contends that the trial court erred in entering judgment against him for negligent misrepresentation because the petition failed to sufficiently plead that cause of action. In his seventh point, Knox argues that the trial court should not have awarded Lakeridge damages for the capital gains taxes Lakeridge was required to pay when the property was not conveyed in time to complete a like-kind exchange under § 1031 of the Federal Tax Code because the amount of damages is too uncertain. In his final point, Knox claims the trial court erred in awarding Lake-ridge damages for the additional $40,000.00 Lakeridge was required to pay in order to acquire the property from the trust beneficiaries in November 2006 because the proper measure of damages should have been the difference between the contract price and the fair market value of the property on the date the sale was supposed to close.

In this opinion, we will address only Knox’s second point on appeal. Having determined that discussion of his remaining points would have no precedential value, we affirm the remaining points by summary order pursuant to Rule 84.16(b) and have provided the parties with a memorandum of the reasons for our decision as to those issues.

In his second point, Knox claims that the trial court erred in entering judgment against him individually on the breach of contract claim. Knox argues that the petition did not contain sufficient averments to state a claim against him in his individual capacity because there was no assertion that he was a party to the contract or breached the contract in that capacity.

“Appellate review of court-tried cases is governed by the standard articulated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).” Minor v. Rush, 216 S.W.3d 210, 212 (Mo.App. W.D.2007). “Under that standard, a trial court’s judgment will be affirmed unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id.

“When we consider whether a petition fails to state a claim upon which relief can be granted, we accept all properly pleaded facts as true, give the pleadings their broadest intendment, and construe all allegations favorably to the pleader.” Bohac v. Walsh, 223 S.W.3d 858, 862 (Mo.App. E.D.2007). We must determine “whether the petition, given its most liberal construction and according it all reasonable inferences deducible from the facts stated, states a cause of action so as to vest the trial court with authority to grant any relief.” Crossland Constr. Co. v. Alpine Elec. Constr. Inc., 232 S.W.3d 590, 592 (Mo.App. S.D.2007) (internal quotation omitted).

The elements of a breach of contract claim are: “(1) the existence of an enforceable contract between the parties; (2) mutual obligations arising under the terms of the contract; (3) one party’s failure to perform the obligations imposed by the contract; and (4) the resulting damage of the other party.” Midwest Bankcentre v. Old Republic Title Co. of St. Louis, 247 S.W.3d 116, 128 (Mo.App. E.D.2008). Knox contends that the petition failed to allege that he was a party to the contract in his individual capacity or that he breached that contract.

The petition averred that “[a]t all times referenced herein, Defendant James Knox was acting within the scope of his authority as Successor Trustee of the trusts.” Moreover, the contract was attached to the petition and incorporated therein by reference. The contract clearly reflects that it was executed by Knox as trustee of the Albert Stockman Trust. Section 456.10-1010.1 provides that “[e]x-cept as otherwise provided in the contract, a trustee is not personally liable on a contract properly entered into in the trustee’s fiduciary capacity in the course of administering the trust if the trustee in the contract disclosed the fiduciary capacity.” As the fact that Knox was acting in his fiduciary capacity is clear on the face of the contract and that contract was incorporated in the petition by reference, as a matter of law, the breach of contract claim against Knox individually is defective on its face.

Accordingly, the judgment against Knox individually for breach of contract must be reversed. In all other respects the judgment is affirmed. A memorandum discussing the points not covered in this opinion has been furnished to the parties pursuant to Rule 84.16(b). See Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50, 58 (Mo. banc 2005); In re Marriage of Accurso, 234 S.W.3d 556, 557 (Mo.App. W.D.2007); Lee v. Investors Title Co., 241 S.W.3d 366, 367 (Mo.App. E.D.2007); Wedgewood Square Center Ltd. Partnership v. Lincoln Land Title Co., Inc., 217 S.W.3d 308, 310 (Mo.App. S.D.2007).

All concur.


source: Caselaw Access Project

author: LISA WHITE HARDWICK, Judge.

license: Public Domain

text:
    STATE ex rel. The KANSAS CITY SYMPHONY, Appellant, v. The STATE of Missouri, et al., Respondents.
    No. WD 70382.
    Missouri Court of Appeals, Western District.
    Feb. 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2010.
    Application for Transfer Denied June 29, 2010.

      Richard W. Miller, Esq., Kansas City, MO, for appellant.

      Robert L. Presson, Esq., Jefferson City, MO, for respondent.
    Before Division One: LISA WHITE HARDWICK, Presiding Judge, THOMAS H. NEWTON, Chief Judge, and ALOK AHUJA, Judge.
   LISA WHITE HARDWICK, Judge.

The Kansas City Symphony (Symphony) appeals from a judgment denying its declaratory judgment claim against the State of Missouri (State) and its action for mandamus relief against the Missouri General Assembly (Legislature). The Symphony sought a declaration that the State is required, pursuant to Section 143.183.5, to provide tax revenue funding for the Missouri Arts Council Trust Fund and sought orders compelling the State and the Legislature to comply with the statute. The Circuit Court of Cole County granted the Defendants’ motion for judgment on the pleadings, finding that the Symphony’s claims were barred by sovereign immunity and article III, section 36 of the Missouri Constitution. On appeal, the Symphony contends the court erred in applying the law. For reasons explained herein, we find no error and affirm the judgment on the pleadings.

Standard of Review

In cases where the circuit court does not hear evidence, it may hear argument and enter judgment on the pleadings. Rule 55.27(b). “The question presented by a motion for judgment on the pleadings is whether the moving party is entitled to judgment as a matter of law on the face of the pleadings.” RGB2, Inc. v. Chestnut Plaza, Inc., 103 S.W.3d 420, 424 (Mo.App.2003). “The well-pleaded facts of the non-moving party’s pleading are treated as admitted for purposes of the motion.” Eaton v. Mallinckrodt, Inc., 224 S.W.3d 596, 599 (Mo. banc 2007). Because a judgment on the pleadings addresses an issue of law, our review is de novo and without deference to the circuit court’s ruling. Cures Without Cloning v. Fund, 259 S.W.3d 76, 80 (Mo.App.2008).

Factual and Procedural History

In 1994, the Legislature enacted Section 143.183.2 to provide funding for the Missouri Arts Council Trust Fund by transferring from the general revenue fund an amount equal to fifty percent of the estimated income tax revenues collected from nonresident members of professional athletic teams and nonresident entertainers. Section 143.183.2, RSMo 1994, provided in relevant part:

For fiscal year 1996, and for each subsequent fiscal year for a period of nine years, an amount equal to fifty percent of such [income tax revenue] estimate shall be transferred, subject to appropriation, from the general revenue fund to the Missouri arts council trust fund established in section 185.100, RSMo, and any amount transferred shall be in addition to such agency’s budget base for each fiscal year.

(Emphasis added.)

In 1998, the Legislature amended this statute to extend the funding for an additional four years and to increase the income tax revenue percentage to sixty percent. § 143.183.4, RSMo Cum.Supp.1998. A subsequent amendment, in 2003, extended the funding through 2017 and deleted the phrase “subject to appropriation.” § 143.183.5 (emphasis added).

Pursuant to Section 185.100.1, the Legislature established the Missouri Arts Council Trust Fund (Arts Trust Fund) and its Board of Trustees to manage the funds transferred under Section 143.183.5. The Arts Trust Fund enabling statute provides that “[sjubject to appropriations, moneys in the fund shall be used solely for the promotion of the arts in Missouri and for the administrative costs of the Missouri arts council.” § 185.100.1.

The Arts Trust Fund created a program to encourage long-term investments in the arts by offering matching grants for monies raised by arts organizations. In 2000, the Board of Trustees for the Arts Trust Fund executed a written incentive agreement to provide matching funding in an amount equal to one-half of the monies raised by The Kansas City Symphony. The incentive agreement expressly stated that such funding shall be “[s]ubject to annual appropriations.” During the next few years, the Symphony raised endowment funds of more than $3.7 million, which it anticipated would be matched by trust funding under the incentive agreement.

In 2006, the Symphony filed a petition, in the Circuit Court of Cole County, alleging that the State had “failed and refused to allocate the revenues required by § 143.183” since 1997. The petition was later amended to seek a declaratory judgment and an order requiring the State to pay the delinquent amount of $63,902,716, plus interest, to the Arts Trust Fund. The amended petition also added the Legislature as a defendant and sought a writ of mandamus to compel the Legislature to comply with Section 143.183.

The defendants filed a motion for judgment on the pleadings. The circuit court granted the motion, finding that: (1) the claims against the State and the Legislature were barred by the doctrine of sovereign immunity; and (2) the Symphony’s interpretation of Section 143.183.5 — as mandating a transfer of funds from the general revenue fund without appropriation — was unconstitutional. The court entered judgment in favor of the State and the Legislature on all claims. The Symphony appeals.

Analysis

Sovereign Immunity

In its first point on appeal, the Symphony contends the circuit court erred in determining that its claims were barred by sovereign immunity. The Symphony argues that the State waived sovereign immunity by enacting Section 143.183.5 and by entering into the incentive agreement to match arts funds raised by the Symphony. Citing Crain v. State Employees, 613 S.W.2d 912, 917 (Mo.App.1981), and V. S. Dicarlo Co. v. State, 485 S.W.2d 52, 54 (Mo.1972), the Symphony asserts that such waiver can be inferred in situations where a statute provides a tangible benefit or the State executes a contract to provide funding.

The Symphony’s argument relies on the assumption that the legislature, by enacting Section 143.183.5, has unequivocally committed itself to transfer funds to the Arts Trust Fund without the need for appropriation. This assumption is misplaced and is not supported by the Crain or DiCarlo decisions.

In Crain, retired state employees sought to bring compensation claims against the state retirement system. 613 S.W.2d at 914. The trial court granted a motion to dismiss on grounds of sovereign immunity, despite statutory language authorizing the retirement system to “sue and be sued in its own name.” Id. at 917. The court of appeals reversed, finding that the express statutory language indicated the legislature’s intent to waive sovereign immunity. Id.

In contrast, there is no comparable language in Section 143.183.5 authorizing the State to sue or be sued. The Symphony instead cites dicta in Crain wherein the court, relying on the DiCarlo case, stated that regardless of the “sue or be sued” language, “when a statute provides a benefit or awards a contract, a waiver of immunity from suit to enforce the benefit or contract is inferred.” Id. DiCarlo addressed a defense of sovereign immunity where the State had entered a contract for construction of a building but then refused to pay for extra work performed beyond the contract provisions. 485 S.W.2d at 53. Reasoning that the legislature did not intend a contract completely lacking in mutuality, the court inferred a waiver of sovereign immunity binding the state to its performance under the terms of that contract. Id. at 54.

All waivers of sovereign immunity are to be strictly construed. Richardson v. State Highway & Transp. Comm’n, 863 S.W.2d 876, 882 (Mo.banc 1993). Both Crain and DiCarlo involve clear contract principles that do not exist in this case. The only “contract” here is the incentive agreement between the Symphony and the Board of Trustees for the Arts Trust Fund. This lawsuit was not filed against the Trust Fund or its Trustees seeking enforcement of the alleged contract. The Symphony’s claim under Section 143.183.5 is directed against the State and the Legislature, but there is no indication that the “contract” was authorized or approved by the General Assembly as in DiCarlo. “The implied waiver [of immunity] is limited to matters relating to the specific contract authorized.” DiCarlo, 485 S.W.2d at 56-57. The incentive agreement here does not reference Section 143.183.5, and the agreement specifically states that the Board of Trustees’ donation of matching funds to those raised by the Symphony is “subject to appropriation.” This wording is at odds with the Symphony’s bare assumption that Section 143.183.5 either mandates an appropriation or obviates the need for one.

Having failed to overcome sovereign immunity on the declaratory judgment claim, the Symphony further contends that sovereign immunity is not a defense to the mandamus action against the Legislature. We agree with the Symphony that mandamus is an appropriate remedy to compel public officials to perform specific “ministerial” or mandatory duties, such as those referenced in State ex rel. Zoological of Control v. City of St. Louis, 318 Mo. 910, 1 S.W.2d 1021, 1028 (1928) (City had mandatory duty to levy and collect tax that was authorized by state law and approved by City voters). However, as discussed more fully under Point II, the Symphony cannot demonstrate that the Legislature had a ministerial obligation to transfer general revenue funds to the Arts Trust Fund. Because the transfer of funds under Section 143.183.5 was subject to appropriation, compliance with the statute was discretionary and not mandatory. Mandamus will not lie to compel an agency to perform a discretionary duty. State ex rel. Great Lakes Pipe Line Co. v. Hendrickson, 393 S.W.2d 481, 483 (Mo.1965). Accordingly, the Symphony failed to state a claim for mandamus relief as a matter of law. The mandamus claim was properly denied on that basis, and the defense of sovereign immunity was never at issue.

Point I is denied.

Application of Section 143.183.5

In Point II, the Symphony contends the circuit court incorrectly interpreted Section 143.183.5 in granting the State’s motion for judgment on the pleadings. The Symphony argues that the repeated use of the word “shall” in the statute indicates the State had a mandatory duty to transfer monies from the general revenue fund into the Arts Trust Fund, without the need for appropriation. As amended in 2003, Section 143.183.5 provides:

For fiscal year 2000, and for each subsequent fiscal year for a period of sixteen years, sixty percent of the annual estimate of taxes generated from the nonresident entertainer and professional athletic team income tax shall be allocated annually to the Missouri arts council trust fund, and shall be transferred from the general revenue fund to the Missouri arts council trust fund established in Section 185.100, and any amount transferred shall be in addition to such agency’s budget base for each fiscal year.

(Emphasis added.)

To determine the meaning of the statute, we start with the plain language of the statute itself. Bauer v. Transitional Sch. Dist. of City of St. Louis, 111 S.W.3d 405, 408 (Mo.banc 2003). We agree with the Symphony that use of the word “shall” generally connotes a mandatory duty. Id. Whether the use of the word “shall” in a statute is considered mandatory or directory, however, is primarily a function of context and legislative intent. Id.

The 2003 amendment to Section 143.183.5 that deleted the phrase “subject to appropriation” certainly supports the Symphony’s argument that the Legislature intended that tax revenue be automatically transferred from the general revenue fund to the Arts Trust Fund. However, Section 143.183.5 must be read in conjunction with the statute creating the Arts Trust Fund, Section 185.100.1, which includes the following language: “Subject to appropriations, moneys in the fund shall be used solely for the promotion of the arts in Missouri....” The Legislature’s practice from the inception of the Arts Trust Fund has been to implement the provisions of these two statutory sections by transferring funds in an appropriations bill — another indication that it did not intend to exempt these general revenue funds from that process. Thus, we conclude that the language of Section 143.183.5 indicating that the general revenue funds “shall be allocated” and “shall be transferred” to the Arts Trust Fund is directory, rather than mandatory, and does not supplant the appropriations process.

We are further concerned that the Symphony’s interpretation of the statute creates a constitutional conflict. Relying on State ex rel. Fath v. Henderson, 160 Mo. 190, 60 S.W. 1093 (1901), the circuit court concluded that a mandatory transfer of funds under Section 143.183.5 would run afoul of the appropriations requirement in article III, section 36 of the Missouri Constitution. We agree.

In Fath, a statute directed that the proceeds of a newly created estate tax be placed into a special fund. 60 S.W. at 1094. The statute provided that the “moneys deposited in the said fund shall be appropriated by the general assembly for public educational purposes.” Id. The re-lators argued that the statute was invalid because it conflicted with the separate appropriations process required by the Missouri Constitution. Id. at 1093. Rejecting the relators’ argument, the Supreme Court upheld the constitutionality of the statute, finding the legislature could allocate revenue to a special fund “subject to subsequent appropriation for the purpose for which it was levied[.]” Id. at 1096. Although the tax revenue was directed to a special fund under the statutory language, “it still belongs to the state, and may be appropriated to another and different use[.]” Id. at 1097.

The rationale in Fath is instructive in applying the plain language of Section 143.183.5. The provision directing a transfer of funds from the general revenue fund to the Arts Trust Fund does not obviate the need for appropriation. The policy underlying the constitutional appropriations requirement is that each legislature must have discretion to respond to the financial needs of the times. As the Supreme Court observed in Fath, “one general assembly cannot tie the hands of its successor[.]” 60 S.W. at 1097. The legislature is permitted to establish a special fund and allocate revenue to that fund, but the actual disbursement of such funds is nonetheless subject to appropriation by future legislators. Id.

To otherwise interpret the statute as avoiding the appropriations process would render it unconstitutional under article III, section 36. Such an interpretation would also create a perpetual or automatic continuing appropriation under section 143.183.5, in violation of other constitutional provisions. Article IV, Section 28 provides that no money can be withdrawn from the state treasury except by appropriation and every appropriation shall expire within six months after the period for which it was made. Article IV, section 23 provides that appropriations can be made for only one or two fiscal years. Article IV, section 26 gives the governor a line item veto over any appropriation. As a principle of statutory construction, this court should reject an interpretation of a statute that would render it unconstitutional, when the statute is open to another plausible interpretation by which it would be valid. Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822, 838-39 (Mo. banc 1991).

Finally, the Symphony argues the language of Section 143.183.5 “imposes a trust upon the funds collected” and, therefore, requires a mandatory transfer to the Arts Trust Fund. Citing Board of Public Buildings v. Crowe, 363 S.W.2d 598 (Mo. banc 1962), and Mallory v. Barrera, 544 S.W.2d 556 (Mo. banc 1976), the Symphony contends that monies collected pursuant to a specific statutory scheme are to be held in trust by the State and can only be used for the intended purpose set forth in the statute. We find nothing in these cases to suggest that Section 143.183.5 creates a special trust and requires mandatory disbursement of funds.

Crowe dealt with revenue bonds for the construction of a state office building. 363 S.W.2d at 600. The Legislature authorized the bonds to be repaid with rent proceeds from state agencies housed in the building, and the State Treasurer was to hold the proceeds as custodian. Id. A group of taxpayers argued, in part, that this arrangement violated article III, section 36, which required state funds to be deposited into the treasury, and provided for the withdrawal of state funds in a method (i.e. not by “appropriation”) contrary to article IV, section 28. Id. at 601.

While recognizing that these rent proceeds would be “state funds” as opposed to private money, the court held the rents were not part of the general revenue of the State because they “will have already been withdrawn from the general revenue by regular appropriations, assigned to specific agencies or departments for their general support, and thus made subject to their disbursement; a portion of this money will thereafter be regularly requisitioned by the respective agencies and applied as rent.” Id. at 606. In other words, the funds had already been through the appropriations process and did not need to be appropriated again. Thus, the Court concluded that the rent proceeds were “in the nature of a special state fund” or “trust fund” that could be disbursed for the stated purpose of repaying the bonds. Id. at 608.

Importantly, the Court also found the revenue bond monies, which had not been previously appropriated, were subject to provisions of article III, section 36 and had to be placed in the state treasury for later appropriation. Id. at 607. “This money is also charged with a trust, but it differs from the rentals in that it would not have passed through the treasury at any time and would not have been withdrawn therefrom by appropriation.” Id. This distinction in Crowe is relevant in the instant matter because even though the bond proceeds were considered to be in the nature of a trust fund, only the previously appropriated rents and bond proceeds after appropriation were classified as special trust funds subject to disbursement for their stated purpose. Crowe supports our holding that the transfer of funds under Section 143.183.5 cannot be mandated prior to legislative appropriation.

Mallory was a declaratory judgment action raising the issue of whether the State of Missouri could use federal funds to pay public school personnel to provide teaching services to students at private schools. 544 S.W.2d at 558. Missouri law would have prohibited such expenditures. Id. at 561. The court held that such federal funds were held in trust for the purposes specified under federal law and could be appropriated for those purposes that are not proscribed by the laws of Missouri. Id.

Similar to the Symphony’s argument on appeal, the defendants in Mallory asked the court to find that the federal funding arrangement created a “special trust fund, separate and apart from the state treasury” to allow disbursement of the funds as prescribed by federal law and “thereby avoid the fiscal scheme created by the Missouri Constitution^]” Id. The Court declined to reach that issue, finding that it was not “justiciable” on the pleadings presented. Id. at 561-62. Given that disposition, Mallory does not support the Symphony’s assertion . that Section 143.183.5 imposes a special trust, such as the one that was carefully distinguished in Crowe.

We find no error in the circuit court’s application of Section 143.183.5. The court correctly determined that the State and the Legislature cannot be compelled to transfer general revenue funds to the Arts Trust Fund without complying with the constitutional requirement for appropriation. Point II is denied.

Conclusion

We affirm the judgment of the circuit court.

All Concur.

      . All statutory citations are to the Revised Missouri Statutes 2000, as updated by the Cumulative Supplement 2009, unless otherwise noted.

      . For example, in 1997 the Legislature passed an appropriations bill to transfer $4,428,383 from the general revenue fund to the Arts Trust Fund. 1997 Mo. Laws 67 (§ 7.065). More recently, in 2008 the Legislature used the appropriations process to transfer $10,800,000 to the Arts Trust Fund. 2008 Mo. Laws 139 (§ 7.120).

      . Article III, section 36 of the Missouri Constitution provides in relevant part:
      All revenue collected and money received by the state shall go into the treasury and the general assembly shall have no power to divert the same or to permit the withdrawal of money from the treasury, except in pursuance of appropriations made by law.


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

text:
    Ryan A. FIELDER, Respondent, v. Robert E. GITTINGS, Appellant.
    No. WD 70212.
    Missouri Court of Appeals, Western District.
    Feb. 23, 2010.
    Application for Transfer to Supreme Court Denied March 30, 2010.
    Application for Transfer Denied June 29, 2010.

      William A. Mallory, Overland Park, KS, for appellant.
    Douglas F. Noland, Liberty, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   JAMES M. SMART, JR., Judge.

Robert Gittings appeals the judgment of the Clay County Circuit Court granting a new trial on Ryan Fielder’s petition claiming automobile negligence. He claims the trial court erred in granting a new trial on the basis of juror non-disclosure. The judgment is affirmed.

Facts

Ryan Fielder filed a petition in February 2007 alleging that he was injured by Robert Gittings’ negligent operation of a vehicle. After a trial, the jury returned a verdict in favor of Fielder and against Gittings. The jury awarded Fielder damages in the amount of $40,000. Fielder filed a motion for a new trial premised on intentional juror non-disclosure during voir dire. The trial court granted Fielder’s motion for a new trial.

Gittings appeals.

Analysis

The parties have a right to a fair and impartial jury composed of twelve qualified jurors. Nadolski v. Ahmed, 142 S.W.3d 755, 764 (Mo.App.2004). “Among other things, this means that the jurors who hear the case should be unbiased individuals whose experiences, even innocently and reasonably undisclosed, will not prejudice the case.” Id. “During voir dire examination, each prospective juror therefore has a duty to fully, fairly and truthfully answer each question asked so that determinations may be made about each juror’s qualifications and counsel may make informed challenges.” Id. “When a juror fails to heed her duty by withholding material information and that failure results in bias and prejudice to the moving party, a new trial is warranted.” Id.

Clear Question

In determining whether to grant a new trial for juror nondisclosure, the court first must determine whether a nondisclosure occurred at all. State v. Mayes, 63 S.W.3d 615, 625 (Mo. banc 2001). Nondisclosure can occur only after a clear question is asked during voir dire. Brines By Harlan v. Cibis, 882 S.W.2d 138, 139 (Mo. banc 1994). An unequivocal question triggers a venireperson’s duty to disclose. Id. Silence to an unequivocal question establishes juror nondisclosure if the information is known to the juror. Id.; Heinen v. Healthline Mgmt., Inc., 982 S.W.2d 244, 248 (Mo. banc 1998). “This is an objective inquiry that looks to whether the appellant can show that there exists no reasonable inability to comprehend the information solicited by the question.” McBurney v. Cameron, 248 S.W.3d 36, 42 (Mo.App.2008). In other words, if a person could reasonably be confused, the question is not sufficiently clear to warrant further inquiry into the alleged nondisclosure. See id. The threshold determination of the clarity of a question is reviewed de novo. Id. The reasonable interpretation of the question depends on the context of the question as well as the wording of the question. Id. at 44.

Fielder’s motion for a new trial was predicated on the failure of jurors Sherman, Wilson, and Rude to disclose their involvement in collection and landlord/tenant actions. With respect to juror Sherman, Fielder cited two suits in which juror Sherman was involved: (1) a breach of contract claim brought by a credit card company and (2) a suit on account brought by a real estate lending company. Both suits resulted in default judgments against juror Sherman. With respect to juror Rude, Fielder cited three suits in which juror Rude was involved: (1) a petition on account; (2) a breach of contract claim brought by a credit card company; and (3) a petition for delinquent Missouri individual income tax. All three suits were brought in Associate Circuit Court and resulted in default judgments against juror Rude. With respect to juror Wilson, Fielder cited four suits in which juror Wilson was involved: (1) a petition on account brought by a credit card company; (2) a rent and possession action filed against juror Wilson that was dismissed once but later re-filed; and (3) an unlawful detainer action filed against juror Wilson. All claims resulted in default judgments.

In his first point, Gittings claims that any alleged non-disclosure by the three jurors of collection and landlord/tenant actions was the direct and sole result of Fielder’s failure to ask a clear and concise voir dire question about prior litigation experience. He states that the context of Fielder’s questions focused solely on personal injury litigation experience.

The following relevant questioning occurred during voir dire:

[Fielder’s counsel]: As the Judge has indicated to you, this is a civil case. It’s not a criminal case. It’s a civil case. We’re going to be here to ask for money to make up for the harm that Ryan has suffered as a result of what we believe the evidence will be what the defendant has done here. I’ve got kind of a number of questions I want to ask you. To start off, is there anybody here, either themselves or their family members, who has ever filed a lawsuit much the same as Ryan has in this case here? Either you or a family member ever filed a lawsuit?
VENIREMAN THERLING: Yes.
[Fielder’s counsel]: Tell me about that, sir.
VENIREMAN THERLING: My aunt three or four years ago got hit in a parking lot and filed a lawsuit on it and settled it.
[Fielder’s counsel]: That was your aunt, is that correct?
VENIREMAN THERLING: Yes.
[Fielder’s counsel]: She was injured?
VENIREMAN THERLING: Yes.
[Fielder’s counsel]: Anything about that, one way or another, that causes you to lean one way or another on this case here?
VENIREMAN THERLING: Other than her being my aunt, no.
[Fielder’s counsel]: Thank you very much, Mr. Therling. Anyone else in the jury box here? Mrs. Carnes.
VENIREMAN CARNES: Thirteen years ago, we lost a baby through a procedure being done so we took the doctor to court and we got it settled.
[Fielder’s counsel]: I’m very sorry to hear that. Anyone else? Yes, sir, Mr. Vanderford.
VENIREMAN VANDERFORD: It’s been about 20 years ago. Somebody keyed my wife’s car at the bank where she worked and there was a class action. The employees went together and pressed charges.
[Fielder’s counsel]: So that involved like a credit card or a bank card?
VENIREMAN VANDERFORD: No, they had a key and keyed the cars at the bank.
[Fielder’s counsel]: Okay.
VENIREMAN VANDERFORD: Seven or eight cars were involved.
[Fielder’s counsel]: So that was just damage to the cars?
VENIREMAN VANDERFORD: Yes.
[Fielder’s counsel]: Anyone else in this area?
[There is no response from the jury panel.]
[Fielder’s counsel]: How about back in the first row here? Mr. Stubbs?
VENIREMAN STUBBS: Correct. I guess it was about 7 years ago. My wife and daughter were involved in an accident where a drunk driver crossed the road and hit their vehicle. We had to file suit against them.
[Fielder’s counsel]: Was that case — I’m sorry to hear that as well. Were they hurt bad in the case?
VENIREMAN STUBBS: Yeah, broken ribs and ankle and things like that that took quite a while to heal.
[Fielder’s counsel]: Was the case settled?
VENIREMAN STUBBS: Yeah, it settled without trial.
[Fielder’s counsel]: How do you kind of feel about all that now after the case is over with in terms of the legal system and what you had to go through?
VENIREMAN STUBBS: I guess it worked the way it was supposed to. We settled with the insurance company for the other party. I’m not sure whether the amount was fair or not, but that’s what we settled on.
[Fielder’s counsel]: And how long ago was that, Mr. Stubbs?
VENIREMAN STUBBS: I think that was seven years ago.
[Fielder’s counsel]: And that was your wife and daughter?
VENIREMAN STUBBS: Correct.
[Fielder’s counsel]: Thank you very much, sir. We’ve got a few more hands here. Mr. Hughes?
VENIREMAN HUGHES: Hughes, yes. I personally have not filed a suit, but my insurance company did on my behalf basically to recoup their costs on an accident that was someone else’s fault, but I didn’t benefit from that.
[Fielder’s counsel]: It probably involved property damage?
VENIREMAN HUGHES: Yes.
[Fielder’s counsel]: Anybody injured in that?
VENIREMAN HUGHES: No.
[Fielder’s counsel]: Thank you very much. Did you have to go to court on that, Mr. Hughes?
VENIREMAN HUGHES: Yes, it did go to trial.
[Fielder’s counsel]: Thank you very much.
VENIREMAN BUCK: Hi, my name is Debbie Buck. I was hit from behind 8 years ago. It shattered my left hand and cracked my right knee drum. We went to court. It was not a good experience.
[Fielder’s counsel]: Did you have a trial?
VENIREMAN BUCK: Uh-huh.
[Fielder’s counsel]: Was it up here in Clay County?
VENIREMAN BUCK: Yeah, it was right here in this room actually.
[Fielder’s counsel]: And how long ago was that, ma’am?
VENIREMAN BUCK: Five years ago.
[Fielder’s counsel]: Were you the driver of the other car or were you a passenger?
VENIREMAN BUCK: I was driving, and I was hit from behind.
[Fielder’s counsel]: You were hit from behind?
VENIREMAN BUCK: Uh-huh.
[Fielder’s counsel]: Thank you, ma’am. You said that it wasn’t a pleasant experience. Anything more that you’d care to tell us about that process that you kind of feel one way or another — this is a new case with new facts.
VENIREMAN BUCK: I have to tell the truth so I’ll tell the truth. I was not pleased with how it turned out. It took almost two years to rebuild my hand. By the time the insurance company got their share and the lawyers got their share, I had $1,200, and I still can’t make a fist and my knee still goes out sometimes. It was a real bad experience.
[Fielder’s counsel]: I’m sorry about your injury.
VENIREMAN BUCK: Thanks.
[Fielder’s counsel]: Anyone else? Mr. McMullin.
VENIREMAN McMULLIN: Twenty years ago, a one-car injury accident involving my wife, her sister and her brother, a rollover on 1-70. She was critically injured and still suffers. Broken neck, spleen, those types of injuries. There was litigation during that. It was a construction company.
[Fielder’s counsel]: Anything about that process that you have some feelings one way or another that could have some bearing on how you look at things in this case?
VENIREMAN McMULLIN: I’ll just look at the data that’s provided.
[Fielder’s counsel]: Thank you, Mr. McMullin.
VENIREMAN BARTKOSKI: My name is Joe Bartkoski. About four years ago, my wife was hit by a driver coming off the Broadway Extension. It was right after the birth of my little daughter which she was — it was settled out of court, but she to this day still has some problems where she has to go to a chiropractor. For about two to three months after the wreck, she was not allowed to lift our little baby girl at that time. It caused a lot of trouble at that point. Not having a mother be able to lift her own baby is not a good thing after an accident. That was about four to four and a half years ago.
[Fielder’s counsel]: Thank you very much, sir. I think there was one more hand back there.
VENIREMAN BYRAM: My name is Bill Byram. Approximately three to four years ago, a semi backed into my wife. For whatever reason, they claimed their fault and paid for the car, but said they were not responsible for the people in the car, however they figured that. We had to sue them for her accident. It was neck injury that involved surgery to her neck. She has steel plates in the vertebrae still in her neck. She still suffers from headache and arm numbness. We did eventually settle out of court. Due to the fact that she still has the problems with it, I don’t feel it was a proper amount.
[Fielder’s counsel]: Thank you very much, Mr. Byram. Mr. Randolph.
VENIREMAN RANDOLPH: Jeff Randolph. I had an accident when I was 16 where we had to file a lawsuit to get all the doctors’ bills and attorney fee bills taken care of. It settled out just fine, but we did have to file a lawsuit against that.
[Fielder’s counsel]: Thank you, Mr. Randolph. Anyone else? Mrs. Nolan.
VENIREMAN NOLAN: Yes, my name is Sidonia Nolan. My mother was an employee at Price Chopper. They had a broken ice machine, and she had fell in a puddle of water and separated her rota-tor cuff and had to have surgery and a permanent pin put in.
[Fielder’s counsel]: Was there some type of worker’s comp case?
VENIREMAN NOLAN: Yeah, right. That was about 12 years ago.
[Fielder’s counsel]: And she had surgery on her—
VENIREMAN NOLAN: Her shoulder had a permanent pin put in, and she has certain restrictions now with her shoulder.
[Fielder’s counsel]: Thank you very much, Mrs. Nolan.
VENIREMAN KOCH: I’m Jeanette Koch. I believe it was last September. My son was involved in an accident. A young girl went across the road in front of him. He could not avoid her and hit the rear end of her car. The insurance company settled it probably three months later, but they did say my son was partially to blame because he should have gotten stopped. But there was really no way. We don’t feel like there was any way he could have stopped without hitting her. But it was settled out of court. I don’t — as far as whether it was fair, we can’t really tell.
[Fielder’s counsel]: Was there an actual lawsuit filed in that, Mrs. Koch?
VENIREMAN KOCH: There was not a lawsuit filed. The young girl that was hit, her father was a police officer in Clay County, and he came after the accident. Looking at the police reports, the badge numbers did not match from what the officer, the attending officer, gave my son and then the officer’s number that was on the police report.
[Fielder’s counsel]: Okay. Anyone else? [There is no response from the jury panel.]
[Fielder’s counsel]: A number of you responded to that. I’d kind of like to just ask the reverse of that question if I could. Is there anybody here, either themselves or their family members, that have had a lawsuit filed against them for some reason or another, that somebody has made a claim or a lawsuit against them seeking some type of recovery.
THE COURT: You’re not counting divorces, are you, [Fielder’s counsel]?
[Fielder’s counsel]: No.
VENIREMAN EDWARDS: I’m Barbara Edwards. My mother had — her father died. My grandfather died in an accident, and the other person involved ended up suing my mom and her sister for claims, but it was not in this state.
[Fielder’s counsel]: So it was kind of an estate, probate litigation?
VENIREMAN EDWARDS: It was.
[Fielder’s counsel]: But it involved — I have a hard time. I think it’s my age. I have a hard time hearing up here. Did this involve your father?
VENIREMAN EDWARDS: My grandfather.
[Fielder’s counsel]: Thank you, Mrs. Edwards. Anyone else? We’ve got Mrs. Kilgore.
VENIREMAN KILGORE: When I was a real estate agent several years ago, I sold a house that had a new roof put on it. The buyers sued the real estate company and the roofer because they said the roof wasn’t up to code.
[Fielder’s counsel]: Okay.
VENIREMAN KILGORE: And my little brother was involved in a car accident several years ago. He was charged with injuring the other party.
[Fielder’s counsel]: That’s kind of a different issue. You mean charged like a criminal charge or a traffic ticket or something like that?
VENIREMAN KILGORE: I think both. I’m not real sure. He went to court for it. I don’t really know what all happened.
[Fielder’s counsel]: Was there somebody else here?
VENIREMAN RIGA: Riga.
[Fielder’s counsel]: Riga.
VENIREMAN RIGA: My husband is in real estate. It was a real estate transaction that went wrong. He ended up in court and we lost.
[Fielder’s counsel]: Anyone else in this area here? How about back here? Mr. McDaniel.
VENIREMAN McDANIEL: Joe McDaniel. I had a mechanic’s lien placed against a builder of a home that I purchased and ultimately myself for payment that he didn’t provide.
[Fielder’s counsel]: Anybody else? Thank you, sir. Mr. Hughes.
VENIREMAN HUGHES: Yes. I had a suit filed against my business. I’m in the roller skating business and had a customer file a suit but it never made it to court. In fact, it barely — it went through my portion of the interrogatories, but the plaintiff didn’t respond to my attorney’s request for information so the suit was eventually dropped.
[Fielder’s counsel]: Okay. Thank you, Mr. Hughes. Mr. McMullin, did you raise your hand?
VENIREMAN McMULLIN: Charles McMullin. My father was taken to court over a mulberry bush. It turned out that mulberry bushes are $1,000 if you’d like to get rid of one. That was their settlement.
[Fielder’s counsel]: Thank you, sir. Anyone else?
[There is no response from the jury panel.]
[Fielder’s counsel]: I think we’ve covered that, and a lot of you responded. I asked about lawsuits, and a number of you responded that you had lawsuits. I know some of you were talking about claims, too. I just want to be sure. Is there anybody else here that maybe has had a claim, either themselves or a family member had a claim where they sought damages, sought some type of compensation to make up for the loss from another person that didn’t go to a lawsuit stage? It just went to a claim stage. Looks like we’ve got a few people here. Mrs. Wilt.

Fielder’s counsel first asked the venire-persons if they had ever filed a lawsuit “much the same” as Fielder did. This could have referred to any type of lawsuit or to specifically personal injury lawsuits. Then, Fielder’s counsel asked “the reverse” of that question. Fielder argues that the second question encompassed all litigation, thus triggering jurors Sherman, Rude, and Wilson’s duty to disclose the later-discovered suits. Gittings argues that the second question was restricted to personal injury litigation because Fielder’s lawsuit was one for personal injury and much of the voir dire questions pertained to issues specific to personal injury litigation. Gittings cites several cases where the context in which the question at issue arose focused heavily on personal injury litigation, thus making a question about all litigation unclear. See, e.g., McBurney, 248 S.W.3d 36; Payne v. Cornhusker Motor Lines, Inc., 177 S.W.3d 820 (Mo.App.2005); Keltner v. K-Mart Corp., 42 S.W.3d 716 (Mo.App.2001).

The second question asked if the venire-persons had ever been a defendant in a lawsuit “for some reason or another” or if a suit or claim had sought “some type of recovery” from them. The trial judge interpreted this question as being broad and attempted to narrow it down by asking if counsel was excluding divorce cases. Six venirepersons responded to the second question and revealed prior lawsuits in which they or their family members had been sued in the past. These cases involved probate litigation, a faulty roof, criminal charges, a mechanic’s lien, a real estate transaction, a roller skating business, and a mulberry bush. No venireper-son responded to the question with an incident of personal injury litigation. Fielder’s counsel’s responses to the answers given does not narrow or focus in on any particular type of lawsuit.

Further, this is not a case where the context in which the second question was asked was unclear because the context focused on personal injury litigation. Prior to asking the first and second question at issue, Fielder’s counsel made the following inquiries:

Has anyone been through the jury selection process before?
Does anyone know Fielder or Fielder’s mother?
Does anyone know the driver of the car in which Fielder was a passenger?
Does anyone know about the accident that is the subject of the suit?
Does anyone know Gittings or Gittings’ wife?
Does anyone know a witness to the accident?
Does anyone know the law enforcement officers who responded to the accident? Does anyone know the medical personnel who treated the accident victims? Does anyone work as a safety officer of look at safety procedures as part of their job?
Has anyone ever worked for an adjusting company that adjusts claims?

Gittings argues that the following constitutes context rendering the second question unclear:

While stating his general perception of the case, Fielder’s counsel stated that the jurors would have to decide who is at fault in this ease and what amount of harm that Fielder has suffered.
Prior to asking if anyone is “familiar with this collision” Fielder’s counsel stated that the case involves a “car accident, a car wreck ” that occurred on July 1, 2006, and that the “car accident” involved Fielder, who was a passenger. Prior to asking if anyone knew the medical personnel who treated the accident victims, Fielder’s counsel stated that Fielder was taken by MAST Ambulance to Liberty Hospital “following this collision.”

Gittings argues that these references to the facts leading to the initiation of the lawsuit set all subsequent questions in a context of referring only to personal injury litigation. We disagree. A car accident occurred. The jury would be asked to determine who was at fault. In ascertaining if any of the venirepersons knew the parties or potential witnesses at trial, Fielder’s counsel referred to the factual basis: a car accident. Gittings also cites the following:

When two venirepersons disclosed that they worked in the safety field, Fielder’s counsel asked them if they investigated accidents.

Gittings says Fielder’s counsel focused, on this one question, on venirepersons with experience investigating accidents. None of this creates a context wherein Fielder’s second question could be understood as referring only to personal injury litigation.

Fielder’s counsel’s second question, asking if any venireperson had been a defendant in any type of litigation with the exception of divorce cases, was sufficiently clear to trigger a duty to disclose on the part of jurors Sherman, Rude, and Wilson. The first point is denied.

Intentional or Unintentional

Once nondisclosure is established, it must be determined whether the nondisclosure was intentional or unintentional. Mayes, 63 S.W.3d at 625. This determination is left to the sound discretion of the trial court. Williams By Wilford v. Barnes Hosp., 736 S.W.2d 33, 36 (Mo. banc 1987). “Intentional nondisclo sure occurs: 1) where there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and 2) where it develops that the prospective juror actually remembers the experience or that it was of such significance that his purported forgetfulness is unreasonable.” Id. “Unintentional nondisclosure exists where, for example, the experience forgotten was insignificant or remote in time, or where the [venireperson] reasonably misunderstands the question posed.” Id.

In his second point, Gittings claims that any alleged non-disclosure by the three jurors of collection and landlord/tenant actions was unintentional and reasonable. He states that Fielder’s question addressing prior litigation experience could reasonably be interpreted as seeking only pri- or personal injury litigation experience. Because we have already determined that the question was clear enough to trigger the duty to respond, and because Gittings’ argument here is essentially a reargument of Point I using different terminology, we cannot do other than reject this argument.

Trial was held in June 2008. While he was sitting on the jury, juror Sherman had two lawsuits pending against him in the Associate Circuit Court of Clay County. The three cases involving juror Rude as a defendant occurred after April 2000. The four cases involving juror Wilson as a defendant occurred after September 2001. Judgments were entered against her in November 2001, March 2006, and December 2007. A dismissal was entered in June 2007.

Prior to the hearing on the motion for new trial, Gittings obtained affidavits from all three jurors. The affidavits were prepared by Gittings’ counsel. All three were identical, except for the last sentence of juror Wilson’s affidavit. They were all notarized by the same notary on the same date. All three contained the following “I understood the question of Mr. Fielder’s attorney ... regarding involvement in litigation to refer to personal injury lawsuits.”

All three jurors testified at the hearing on the motion for a new trial. Juror Sherman stated several times that he answered truthfully during voir dire and that he understood Fielder’s counsel’s question as referring only to personal injury lawsuits. Juror Sherman said he was embarrassed about the suits but that he would not have lied about it. In the suit on account, the default judgment was granted by the Honorable Anthony Rex Gabbert, the presiding judge at trial. Judge Gabbert stated that he has personally known juror Sherman for a number of years and that juror Sherman had assisted in Judge Gabbert’s mother’s funeral. Juror Sherman testified that one of his collection matters was actually pending before Judge Gabbert during the time which juror Sherman was serving on the jury and that Judge Gabbert was aware of the case. Juror Sherman also testified that he felt that the motion for new trial implied that he intentionally lied under oath and concealed the lawsuits.

Juror Wilson stated several times that she understood the voir dire question at issue as seeking information only with regard to litigation involving personal injury. She said she did not intentionally conceal any information during voir dire. Juror Wilson testified that at the time the unlawful detainer action was filed, her husband had been handling the household finances and that he had since passed away. All the suits resulted in default judgments against juror Wilson.

“A trial court’s findings concerning whether a juror has failed to disclose relevant information, and concerning whether a juror’s explanation for any nondisclosure is reasonable, are accorded great weight, and will not be disturbed on appeal unless the trial court abused its discretion.” Banks v. Village Enterprises, Inc., 32 S.W.3d 780, 787 (Mo.App.2000). Where the trial court rules on a party’s motion for new trial without making specific findings, reviewing authority considers all findings necessary to the result to be implicit in the trial court’s decision. Id. “Intentional nondisclosure occurs if the juror is reasonably able to comprehend the information solicited by the question asked by counsel, and where the potential juror actually remembers the experience or it is unreasonable for the potential juror to have forgotten it.” Bradford v. BJC Corp. Health Serv., 200 S.W.3d 173, 182 (Mo.App.2006). If a court finds intentional nondisclosure, it effectively per se requires a new trial. Id.

Jurors Sherman and Wilson claimed that they did not reveal the non-disclosed litigation because they believed Fielder’s counsel’s question sought only instances of personal injury litigation. As discussed in the first point, Fielder’s counsel’s question, from an objective standpoint, was sufficiently clear. Both jurors signed identical affidavits, prepared by Gittings’ counsel, stating that they understood the question to pertain only to personal injury litigation. This could have influenced their testimony at trial. Juror Sherman also believed his nondisclosure was being characterized as an intentional lie. The trial court could reasonably have believed that the prior execution of the affidavits would tend to make a person reluctant to admit that he or she should have disclosed the other litigation. Both jurors were reasonably able to comprehend the information sought, and remembered or should have remembered the other litigation. A finding that their nondisclosure was intentional cannot be considered an abuse of discretion.

Juror Rude stated several times that at the time the questions were asked during voir dire, he did not have any recollection of any litigation in which he was involved. Juror Rude’s affidavit, in contrast, stated that he understood the question at issue to refer to personal injury litigation. The trial court could have found not credible (or not reasonable) his testimony that he did not remember the prior litigation given his contradictory affidavit. Nondisclosure is unintentional only if the forgetfulness was reasonable. Massey v. Carter, 238 S.W.3d 198, 202 (Mo.App.2007). Juror Rude claimed to have forgotten three separate lawsuits in which he was named a defendant. The suits were filed in 2000 and 2002, six and eight years before Fielder’s trial. The trial court could have found that Fielder’s lack of memory was not reasonable. See Bradford, 200 S.W.3d at 182 (stating that “it may seem incredible that a person would not remember being sued nearly five years earlier”). The trial court could have found that juror Rude’s forgetfulness was unreasonable. Such a finding was not an abuse of discretion.

“[B]ias and prejudice will normally be presumed if a juror intentionally withholds material information.” Mayes, 63 S.W.3d at 625. A prospective juror’s litigation history is deemed material. Brines, 882 S.W.2d at 140. Accordingly, a finding of intentional nondisclosure of a material issue is tantamount to a per se rule mandating a new trial. Heinen, 982 S.W.2d at 248. The second point is denied.

Timeliness

In his third point, Gittings claims that Fielder waived his right to seek a new trial predicated on juror non-disclosure of prior litigation experience. Gittings points out that Fielder failed to raise the issue of juror non-disclosure prior to jury deliberations. He states that had Fielder raised the issue prior to deliberations, the matter could have been remedied without need of the time and expense of a new trial by utilizing an alternate juror. Gittings asks this court to “consider adopting a due diligence/timeliness requirement by which a party seeking a new trial predicated on juror non-disclosure of prior litigation history be required to, at the very minimum, conduct a search of the jurors in question via CaseNet prior to submission of the case to the jury.” Even if this court thought there could be value in such a bright-line waiver rule, this court has no authority for such.

The lack of a bright-line waiver rule, either of total waiver or of simply a waiver of the conclusive presumption of prejudice, however, does not mean that court and counsel are entirely powerless to deal with the fact that venirepersons face a strong temptation to avoid disclosure of any embarrassing personal litigation history. Regardless of whether there is any change in the applicable law, trial judges and attorneys may consider ways to help venireper-sons overcome their litigation embarrassment so as to be more responsive to the duty to make full disclosure. For now, in any event, we must follow the applicable law.

Conclusion

The judgment is affirmed.

All concur.

      . Beyond making sure that the litigation questions are clear, the court could also, for instance, advise the venirepersons that the duty to disclose is taken very seriously and that an intentional nondisclosure can result in the entire case being tried again. The court could mention that the public records will likely be examined after the verdict and it will be ascertained whether the questions about litigation history were properly and fully answered. Such examination will ordinarily result in any juror suspected of nondisclosure being summoned back into the courtroom to publicly give an account and explanation of the reason for the nondisclosure.
      Unless contrary to local rules, judges can allow the attorneys access to the jurors’ personal information for a specified period of time after jury selection for the limited purpose of a search. Also, an enterprising party can "go the extra mile” to protect a potential verdict by conducting a timely search of the records, then providing a copy of the search results to the opposing party, so that any concerns as to nondisclosure can be handled before submission.


author: PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Joseph S. THORNBURG, Appellant.
    No. WD 70153.
    Missouri Court of Appeals, Western District.
    March 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer Denied June 29, 2010.
    Jeffrey S. Eastman, Gladstone, MO, for appellant.
    Shaun Mackelprang and James B. Farnsworth, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   Order

PER CURIAM:

Joseph Thornburg appeals his convictions of involuntary manslaughter and assault in the second degree and his sentences of incarceration. Affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Mark A. KORTZ, Appellant.
    No. WD 70291.
    Missouri Court of Appeals, Western District.
    March 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer Denied June 29, 2010.

      Kent E. Gipson, Kansas City, MO, for Appellant.
    Chris Koster, Terrence M. Messonnier, Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before JAMES EDWARD WELSH, P.J., MARK D. PFEIFFER, and KAREN KING MITCHELL, JJ.
   ORDER

PER CURIAM:

Mark A. Kortz appeals the circuit court’s judgment convicting him of one count of burglary in the first degree and four counts of the class C felony of stealing. We affirm. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. George Edward HARRIS, Appellant.
    No. WD 69865.
    Missouri Court of Appeals, Western District.
    March 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer Denied June 29, 2010.
    Kent Denzel, Columbia, for appellant.
    Shaun Mackelprang and Jamie Pamela Rasmussen, Jefferson City, MO, for respondent.
    Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.
   Order

PER CURIAM:

George Harris appeals his convictions for first-degree assault and armed criminal action. Affirmed. Rule 30.25(b).


author: MARK D. PFEIFFER, Presiding Judge.

text:
    STATE of Missouri ex rel. Dwight K. SCROGGINS, Jr., Buchanan County Prosecuting Attorney, Relator, v. The Honorable Daniel F. KELLOGG, Judge of the Circuit Court of Buchanan County, Missouri, Division No. 4, Respondent.
    No. WD 71763.
    Missouri Court of Appeals, Western District.
    March 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer Denied June 29, 2010.

      Ronald R. Holliday, Chief Assistant Prosecuting Attorney, St. Joseph, MO, for Relator.
    Daniel L. Radke, St. Joseph, MO, for Respondent.
    Before Writ Division: MARK D. PFEIFFER, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   MARK D. PFEIFFER, Presiding Judge.

The State of Missouri (the State) seeks a writ of mandamus ordering the Circuit Court of Buchanan County (the trial court) to vacate its amended judgment of July 1, 2009, in which it granted Jeffrey Cornelius’s (Cornelius) Rule 29.05 motion and modified his two 7-year sentences to be served concurrently instead of consecutively. In its writ, the State argues that the trial court lacked authority to do so. We agree.

On February 13, 2002, Cornelius pleaded guilty to the class B felonies of first-degree burglary and first-degree assault. The trial court sentenced Cornelius to seven years on both charges and ordered the sentences to be served consecutively. The trial court suspended execution of the sentences and placed Cornelius on probation.

On July 14, 2004, the trial court revoked Cornelius’s probation and ordered his placement in the Missouri Department of Corrections. After numerous post-conviction motions were filed and denied, Cornelius ultimately filed a Rule 29.05 motion in which he requested that the trial court modify his sentences. On July 1, 2009, the trial court held a hearing on Cornelius’s Rule 29.05 motion and entered an amended judgment which ordered Cornelius’s sentences to be served concurrently instead of consecutively. On November 30, 2009, the State filed a writ of mandamus in this court. We granted a preliminary writ on December 22, 2009. We now make that writ absolute.

As a general matter, a trial court lacks the authority to amend a sentence once the judgment becomes final. State ex rel. Poucher v. Vincent, 258 S.W.3d 62, 65 (Mo. banc 2008); State ex rel. Zahnd v. Shafer, 276 S.W.3d 368, 371 (Mo.App. W.D.2009). This is true even in cases where the trial court suspended the execution of the defendant’s sentences. Poucher, 258 S.W.3d at 65; Zahnd, 276 S.W.3d at 371.

This is true in spite of the fact that the trial court purported to act under Rule 29.05. Rule 29.05 grants the trial court the “power to reduce the punishment within the statutory limits prescribed for the offense if it finds that the punishment is excessive.” This rule applies only to criminal cases in which a jury, rather than the trial court, assesses punishment. Weir v. State, 301 S.W.3d 136, 137-38 (Mo.App. W.D.2010); State v. Childers, 192 S.W.3d 496, 497 n. 4 (Mo.App. E.D.2006). If, after the jury returns its verdict, the trial court concludes that the conviction is proper but that the jury’s punishment is greater than that which should have been imposed under the circumstances of the case, the trial court can utilize its power under Rule 29.05 to reduce the sentence. Weir, 301 S.W.3d at 137-38; State v. McClanahan, 954 S.W.2d 476, 481-82 (Mo.App. W.D.1997).

The purpose of Rule 29.05 is to make clear that it is the sentencing court that renders the appropriate sentence after due consideration of the jury’s sentencing recommendation. Rule 29.05 addresses the power of the sentencing court to modify a jury-recommended sentence at the time between when the sentencing court receives the jury’s verdict and the time the sentencing court pronounces the judgment and sentence. Weir, 301 S.W.3d at 137-38; State v. VanSickel, 726 S.W.2d 392, 392-93 (Mo.App. W.D.1987). Once the sentencing court enters a sentence that is authorized by law, the judgment becomes final and the trial court cannot use Rule 29.05 to reduce a defendant’s sentence. Weir, 301 S.W.3d at 137-38; State v. Bryant, 237 S.W.3d 603, 605 (Mo.App. S.D.2007); State v. Lawyer, 208 S.W.3d 921 (Mo.App. E.D.2006).

In this case, there are two reasons why the trial court did not have authority under Rule 29.05 to reduce Cornelius’s sentences. First, the record shows that Cornelius pleaded guilty to his offense and so the trial eourt — and not a jury — assessed his sentences. Rule 29.05 is inapplicable, because the trial court assessed Cornelius’s sentences in the first instance. Weir, 301 S.W.3d at 138-39; see Childers, 192 S.W.3d at 497 n. 4. Second, the record shows that the trial court’s amended judgment occurred approximately seven years after its original judgment became final. Thus, because the trial court had already entered judgment and that judgment had become final, it could not use Rule 29.05 to modify the sentence or the manner in which the sentence would be served. Weir, 301 S.W.3d at 137-38; Bryant, 237 S.W.3d at 605. The trial court, therefore, erred in using Rule 29.05 as an authoritative basis to modify Cornelius’s sentences or to otherwise modify the manner in which Cornelius would serve his sentences.

In its response to the State’s writ, the respondent concedes that, under these pri- or cases, the trial court did not have the authority to modify Cornelius’s sentences. The respondent claims, however, that after the Supreme Court’s decision in Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), section 559.036.3, RSMo Cum.Supp.2006, and the limits on Rule 29.05 cannot prevent the trial court from exercising jurisdiction to modify Cornelius’s sentences.

As this court noted in Andrews v. State, 282 S.W.3d 372 (Mo.App. W.D.2009), the Missouri Supreme Court has, indeed, clarified the law on jurisdiction:

In Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), the Missouri Supreme Court clarified that Missouri recognizes only two types of jurisdiction: personal and subject matter. Id. at 251-53. Both personal and subject matter jurisdiction derive from constitutional principles. Id. Subject matter jurisdiction refers to the ‘court’s authority to render a judgment in a particular category of case.’ Id. at 253. In Missouri, the court’s subject matter jurisdiction derives directly from article V, section 14 of the Missouri Constitution, which says that ‘[t]he circuit courts shall have original jurisdiction over all cases and matters, civil and criminal.’
The Supreme Court noted that there were prior cases that had created another form of subject matter jurisdiction called ‘jurisdictional competence.’ The issue of ‘jurisdictional competence’ arose when there was no question that the circuit court had subject matter jurisdiction over the general issue, but there was [a] question ‘whether the issue or parties affected by the court’s judgment [were] properly before it for resolution at that time.’ Id. (internal quotation marks omitted). In Webb, the Missouri Supreme Court stated that ‘jurisdictional competence’ had no constitutional basis and was not recognized in Missouri. Id.

Andrews, 282 S.W.3d at 374 n. 3.

Thus, prior Missouri cases that interpreted statutory or rule restrictions on a trial court’s power to take an action in a particular case as a deprivation of the court’s “jurisdiction” are no longer accurate. Webb, 275 S.W.3d at 254; Hayes v. State, 301 S.W.3d 542, 547-48 (Mo.App. W.D.2009). Conversely, subject matter jurisdiction does not enlarge a trial court’s authority, and the trial court is not authorized to ignore limits on its authority itemized by statute or rule.

As the Supreme Court noted in Webb, “[w]hen a statute speaks in jurisdictional terms or can be read in such terms, it is proper to read it as merely setting statutory limits on remedies or elements of claims for relief that courts may grant.” 275 S.W.3d at 255. Thus, while a statute or rule cannot strip the court of subject matter jurisdiction, it may still limit the court’s ability to grant a remedy. And, of course, it is this court’s obligation to review actions of trial courts for legal error. State ex rel. State v. Parkinson, 280 S.W.3d 70, 75-76 (Mo. banc 2009).

For example, in Schmidt v. State, 292 S.W.3d 574, 576-77 (Mo.App. S.D.2009), the defendant appealed the judgment of his guilty pleas on the basis that the trial court lacked subject matter jurisdiction over his case. The defendant claimed that the trial court lacked subject matter jurisdiction to accept his guilty plea because, in violation of section 217.460, RSMo 2000, the State did not bring him to trial within 180 days after he requested a final disposition of detainer. Id. at 576.

The Schmidt court held that, pursuant to Webb, the defendant’s claim was not jurisdictional and so, because it was a criminal case, the trial court had subject matter jurisdiction over the defendant’s case. Id. The court, however, noted that section 217.460 was still valid and so the trial court was required to dismiss the case against the defendant if the State failed to bring the case within 180 days of his request for a final disposition. Id. at 577. The court concluded that section 217.460 operated as a statutory bar to relief and that a trial court’s alleged noncompliance with the statute could be reviewed for legal error. Id. Since the defendant entered a guilty plea, the court held that the defendant waived any claim that the trial court failed to follow section 217.460. Id. Thus, even though under Webb a statute or rule may not strip a trial court of jurisdiction, the trial court is still obligated to follow the statute or rule. Id.; see also McCracken, 298 S.W.3d at 477 (stating that whether or not the trial court has jurisdiction over the case and whether or not the trial court has statutory or common law authority to grant relief in a particular case are separate issues); See, e.g., Hayes v. State, 301 S.W.3d at 547-48 (holding that Rule 23.10’s priority rules did not strip the trial court of subject matter jurisdiction but were still binding on the trial court).

Thus, in the present case, while section 559.036 and the limits of Rule 29.05 do not necessarily speak to the trial court’s jurisdiction, they do speak to the trial court’s authority to act. In other words, irrespective of whether or not the trial court possessed any remaining jurisdiction over the manner in which Cornelius’s prison sentence was to be served is irrelevant, because the trial court clearly did not have authority to modify the manner in which the prison sentence was to be served. The trial court, therefore, exceeded its authority and erred in entering its amended judgment.

Based upon the foregoing, we make the preliminary writ absolute and order the trial court to vacate its amended judgment.

ALOE AHUJA, Judge, and KAREN KING MITCHELL, Judge, concur.

      . All rule references are to Missouri Rules of Civil Procedure 2009, unless otherwise indicated.

      . Respondent has filed a motion to dismiss, arguing that the State had an available remedy by appeal, and therefore cannot seek a writ of mandamus pursuant to Rule 84.22(a). We recognize that prior cases have reviewed, on appeal, a trial court’s denial of a belated Rule 29.05 motion. See, e.g., Weir v. State, 301 S.W.3d 136 (Mo.App. W.D.2010); State v. Lawyer, 208 S.W.3d 921 (Mo.App. E.D.2006); State v. VanSickel, 726 S.W.2d 392 (Mo.App. W.D.1987). We need not decide whether review by appeal was an available remedy in the circumstances presented here, however. Even if the State had the right to appeal the trial court's entry of the amended judgment, it filed its petition for writ of mandamus within the time allowed for the State to file an application for leave to appeal out of time under Rule 30.03. In limited circumstances, we may, in our discretion, treat a petition for a writ of mandamus as an application for leave to appeal out of time. See, e.g., State v. Carter, 569 S.W.2d 26, 27 (Mo.App.1978); see also State v. Larson, 79 S.W.3d 891, 893-94 (Mo. banc 2002) (treating improper appeal as an application for a writ of mandamus, and emphasizing that " ‘[c]ases should be heard on the merits if possible, construing the court rules liberally to allow an appeal to proceed’ " (citation omitted)); In re N.D.C., 229 S.W.3d 602, 604 (Mo. banc 2007) (similar). In the unusual circumstances of this case, where there was evidently some confusion as to the manner in which to seek review of the trial court's amended judgment, the governmental entity responsible for seeking review, and the apparent confusion was caused by the trial court acting in excess of its authority, we would find good cause for the filing of a notice of appeal out of time, even assuming the State was required to seek review by appeal.