author: LISA WHITE HARDWICK, Judge.

text:
    BUILDING ERECTION SERVICES COMPANY, Appellant, v. PLASTIC SALES & MFG. CO., INC. d/b/a Sunglo Skylight Products, et al., Respondent.
    No. WD 63383.
    Missouri Court of Appeals, Western District.
    April 12, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    As Modified May 31, 2005.

      Kurt S. Brack and Judd L. Herbster, Overland Park, KS, for appellant.
    Andrea G. McCarthy, Kansas City, MO, for respondent.
    Before SMART, P.J., ELLIS and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

Building Erection Services Company (BESCO) filed claims against Plastic Sales & Manufacturing Company, Inc., d/b/a Sunglo Skylight Products (Sunglo) for an action on account, quantum meruit, and breach of contract. After a bench trial, the circuit court awarded BESCO damages of $4,904 on the quantum meruit claim and denied the remaining claims. BESCO appeals, contending the circuit court erred in denying the contract-based claims, the request for attorney’s fees, and additional damages on the quantum meruit claim. We affirm.

Factual and PROCEDURAL History

Viewed in a light most favorable to the judgment, the facts underlying BESCO’s claims are as follows. In April 1996, Sun-glo entered into a contract with J.E. Dunn, as general contractor, to fabricate and install three skylights as part of a remodeling project at Terminal C of the Kansas City International Airport (KCI). Sunglo planned to fabricate the skylights and then have its regular subcontractor, Royal Remodeling, perform the installation work. After the subcontractor submitted a bid of $6,500 to install the three skylights, Sunglo learned that Royal Remodeling was working on another job and would be unavailable in March 1998, when the installation was to begin.

In late February or early March 1998, Sunglo contacted BESCO to request a bid on the KCI skylight installation. BES-CO’s representative, Todd Riggs, visited Terminal C to review the scope of work with Sunglo’s representative, Tim Driller. Driller pointed out the rough openings for three skylights and explained that two of the openings were nearly complete and ready for installation. The third opening was scheduled for completion in one or two months. Driller told Riggs that Sunglo’s regular subcontractor had bid $6,500 on the project and that Sunglo was unlikely to pay any more than $7,000 for the entire installation. Prior to bidding on the project, Riggs reviewed the shop drawings, which reflected that three skylights were to be installed.

Riggs made a verbal bid of slightly more than $7,000 and then negotiated further with Brian Wilson, a Sunglo representative. In early March 1998, BESCO and Sunglo reached a verbal agreement that the skylights would be installed for $7,000. BESCO began the installation on March 9, 1998, and completed two of the skylights by March 30, 1998. Although Sunglo prepared a “Subcontract for Installation” dated March 8, 1998, neither party executed the written agreement until several weeks after the two skylights were installed.

The Subcontract was eventually signed by Sunglo on April 21, 1998, and by BES-CO on May 5, 1998. The written agreement provided that Sunglo would pay BESCO the sum of $7,000 for “the full, faithful, and prompt performance of [the] Subcontract.” The only reference to the scope of work was set forth in Article -3, which stated:

ARTICLE 3 — DESCRIPTION OF WORK
3.1 Subcontractor agrees to furnish all labor, material, plant, equipment, tools, hoisting, temporary power, safety equipment, skills, services, supervision, administration, taxes, insurance, secure all field measurements and all other items necessary to complete the Work described as follows (hereinafter ‘Work”) in accordance with the terms of the Subcontract Documents:
3.2 Subcontractor shall provide a 1 year leak warranty for its Work on this project. This warranty shall be in writing and shall be provided to Contractor upon completion of Subcontractors Work.

Although the Subcontract referenced the “KCI Terminal C” project, it did not include any specific mention of the skylight installation work or the number of skylights to be installed. The written agreement also did not define the term “Subcontract Documents” as referenced in Section 3.1.

Two weeks after signing the subcontract, BESCO submitted to Sunglo a “subcontractor warranty” and an application for payment in the amount of $8,350. The application, dated May 19, 1998, included charges for the $7,000 sum set forth in the subcontract and $1,350 for additional costs incurred during the installation of the two skylights. The application stated that “100%” of the subcontract work had been completed. Sunglo objected to paying the invoice because the $1,350 in additional costs were not covered by the written subcontract and had not been otherwise approved.

Sometime in mid-May 1998, Sunglo notified BESCO that the third skylight opening was complete and ready for installation. At that time, no discussions took place between the parties regarding any additional costs associated with the third skylight. BESCO began installing the third skylight on May 22, 1998, and completed the work on June 25, 1998. BESCO thereafter notified Sunglo that an additional $4,904 would be billed for installation of the third skylight. Sunglo disputed that any additional money was due and paid BESCO $6,300, consistent with the subcontract price of $7,000 minus a 10% retainage.

In addition to the KCI project, Sunglo and BESCO entered into a subcontract in July 1998 for skylight installation work on the ETC Institute. BESCO agreed to perform the installation for $9,500. Upon completion of the work, Sunglo paid BES-CO $9,000 and retained $500, pending BESCO’s submission of a warranty and lien waiver.

In July 2001, BESCO filed a petition against Sunglo alleging an action on account (Count I), an action in quantum me-ruit (Count II), and a breach of contract claim (Count III). All three counts alleged that Sunglo failed to pay the reasonable value of BESCO’s materials, equipment, and labor for skylight installation work on the KCI and ETC projects. BESCO sought $7,454 in damages under each count, plus interest and attorney’s fees. The damages claim included $1,350 for additional costs incurred for installation of the first two skylights at Terminal C, $4,904 for installation of the third skylight at Terminal C, the $700 retainage on the KCI project, and the $500 retainage on the ETC project.

After a bench trial, the circuit court denied the action on account and breach of contract claims. The court found that no contract existed on the KCI project because the terms of the subcontract were indefinite and the parties did not have a “meeting of the minds” regarding the number of skylights to be installed by BESCO. The court further found that Sunglo did not breach the terms of the subcontract on the ETC project. The court ruled in favor of BESCO on the quantum meruit claim, finding that Sunglo failed to pay the reasonable value of installation work performed on the third skylight. The judgment awarded BESCO $4,904 in damages, plus prejudgment interest. BESCO’s request for attorney’s fees was denied. BESCO appeals.

Points on Appeal

BESCO brings seven points on appeal. BESCO contends the circuit court erred in: (I) determining no subcontract existed on the KCI project; (II) considering parol evidence to determine whether the subcontract existed; (III and IV) denying the retainage claims on the KCI and ETC projects; (V) denying the recovery, under a quantum meruit theory, of additional costs incurred on installation of the first two skylights on the KCI project; and (VI and VII) denying the requests for attorney’s fees under Sectiqns 34.057 and 431.180, RSMo.2000. We will address these points as related to the claims set forth in BESCO’s petition. •

In reviewing this court-tried case, we must affirm the circuit court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We give deference to the circuit court’s factual determinations, reviewing the evidence and inferences in light most favorable to the judgment, while disregarding all contrary evidence and inferences. Langdon v. United Rests., Inc., 105 S.W.3d 882, 886 (Mo.App.2003). Questions of law, however, are reserved for the independent judgment of the appellate court without deference to the trial court’s determination. Id.

Action on Account and Breach of Contract Claims

The action on account and breach of contract claims were premised on BES-CO’s allegation that it had a valid subcontract with Sunglo on the KCI project. The circuit court denied these claims because it determined there was no meeting of the minds on an essential term of the alleged subcontract and, thus, no contract existed. On appeal, BESCO asserts the terms of the subcontract were unequivocal, plain, and clearly expressed the parties’ intention that two skylights were to be installed on the KCI project. Accordingly, BESCO argues the circuit court erred, as a matter of law, in considering parol evidence and in ultimately determining that no contract was formed.

Under Missouri law, the essential elements of a contract are: (1) competency of the parties to contract; (2) subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation. Ketcherside v. McLane, 118 S.W.3d 631, 635 (Mo.App.2003). At issue here is the fourth element, which requires the parties to have “a mutuality of assent or a meeting of the minds on the essential terms of a contract.” Id.

Courts can determine whether there has been a meeting of the minds by “looking to the intention of the parties as expressed or manifested in their words or acts.” Smith v. Hammons, 63 S.W.3d 320, 325 (Mo.App.2002). The essential terms of the contract must be certain or capable of certain interpretation. Ketcherside, 118 S.W.3d at 636. “That is, [the] terms of agreement must be sufficiently definite to enable the court to give it an exact meaning.” Id.

No contract is formed when the terms of agreement are unduly uncertain and indefinite. Around the World Importing, Inc. v. Mercantile Trust Co., 795 S.W.2d 85, 90 (Mo.App.1990). However, uncertainty and indefiniteness are matters of degree. In determining whether the terms of an agreement are too uncertain to create an enforceable contract, “a court is guided by principles of law applied with ‘common sense and in the light of experience.’ ” Ketcherside, 118 S.W.3d at 636 quoting Shofler v. Jordan, 284 S.W.2d 612, 615 (Mo.App.1955). A contract should not be held void for uncertainty unless there is no possibility of giving meaning to the agreement. Branson Land Co. v. Guilliams, 926 S.W.2d 524, 526 (Mo.App.1996); Computer Network, Ltd. v. Purcell Tire & Rubber Co., 747 S.W.2d 669, 676 (Mo.App.1988).

The purpose of the alleged agreement between Sunglo and BESCO was to provide for the installation of skylights in Terminal C as part of the KCI project. Thus, the scope of the skylight installation was an essential term the parties had to agree upon in order to establish a valid contract. BESCO argues the written subcontract on the KCI project was valid and enforceable because it clearly expressed the parties’ mutual intention to install two skylights in Terminal C. We must review the terms of the subcontract and the “words and acts” of the parties to determine whether there was sufficient evidence to support the circuit court’s contrary finding that the parties did not reach an agreement on the number of skylights to be installed by BESCO.

The subcontract itself, which was not executed until several weeks after two of the skylights were installed, makes an introductory reference to the KCI project but does not mention the installation of any skylights. The “Description of Work” in the agreement states only that BESCO will “furnish all labor, materials, ... and all other necessary items to complete the Work described as follows in accordance with the terms of the Subcontract Documents: ” — without providing any further description. The written agreement also does not define the term “Subcontract Documents,” nor describe or attach any such documents.

This lack of a definition is further clouded by the parties’ divergent testimony regarding their understanding of the term “Subcontract Documents.” Sunglo argued at trial that the documents referred to were its prime contract with the general contractor, J.E. Dunn, and the shop drawings, both of which reflected plans for the installation of three skylights in Terminal C. BESCO disputed Sunglo’s contention and instead argued the only document integrated into the subcontract was a written bid proposal, that BESCO submitted on or about March 2, 1998, for the installation of two skylights in Terminal C at a price of $7,180. Sunglo denied ever receiving the bid proposal or having any knowledge of its existence when the subcontract was executed. The conflicting testimony of the parties indicates there was no mutual understanding regarding the nature of the “Subcontract Documents” or the scope of the work to be performed.

Without definite terms in the written subcontract to describe the scope of work, we must consider the intention of the parties as expressed in their words and acts. There is substantial testimony in the record regarding the statements and conduct of the parties prior to the time the skylight installation work began on March 9, 1998. Viewed in a light most favorable to the judgment, this testimony supports the circuit court’s determination that the parties did not have a clear and definite agreement on the number of skylights to be installed by BESCO.

When BESCO representative Todd Riggs visited Terminal C to discuss the scope of the KCI project, Sunglo representative Tim Driller showed him three skylight openings and explained that two were nearly complete and ready for installation. Driller said the third opening would not be ready for one to two months. Dialler thought Riggs would understand, based on this visit and explanation, that Sunglo wanted BESCO to bid on the installation of all three skylights. Driller told Riggs that Sunglo had already received an installation bid from Royal Remodeling for $6,500, but Royal Remodeling would not be available in March 1998 when the first two skylights were scheduled for installation. Riggs interpreted this explanation to mean that BESCO was being asked to bid on the installation of the two skylights that Sun-glo’s standard subcontractor was unavailable to perform. Although Riggs was clearly made aware that the overall scope of the KCI project involved the installation of three skylights in Terminal C, he could have reasonably believed, under the circumstances explained, that BESCO’s involvement was limited to the two skylights scheduled for installation in March 1998.

The misunderstanding between the parties continued even after work was completed on two of the skylights. BESCO sent Sunglo an application for payment, stating the installation work was 100% complete and the $7,000 subcontract amount was due, plus additional costs of $1,350. The invoice was sent in mid-May 1998, around the same time the third skylight opening was ready and Sunglo requested BESCO to perform the installation. BESCO made no effort to negotiate a new subcontract with Sunglo regarding the third skylight at that time, and Sunglo did not dispute BESCO’s invoice stating that the original subcontract work was complete. Neither party made any effort to clarify the scope of the original subcontract until after the third skylight had been installed. It was only then that BESCO demanded additional payment of $4,904 for the third skylight, and Sunglo responded that the original subcontract price of $7,000 included the installation of all three skylights.

There is substantial evidence in the record to indicate the parties never had a “meeting of the minds” regarding the scope of the skylight installation on the KCI project. Neither the written subcontract nor the conduct of the parties demonstrates that an agreement was reached as to how many skylights were to be installed for the negotiated price of $7,000. Without mutual assent on this essential term, no valid contract could be formed. The circuit court did not err in declaring the subcontract void for uncertainty because there was no possibility of giving meaning to the agreement., Point I is denied.

BESCO also contends the circuit court violated the parol evidence rule in considering testimony regarding the prime contract and shop drawings to vary the terms of the subcontract. We disagree that the rule is applicable in determining whether a valid contract was formed.

The parol evidence rule bars evidence of prior or contemporaneous oral agreements that vary or contradict the terms of an unambiguous, final, and complete writing, absent fraud, mistake, accident or duress. Mo. Dep’t. of Transp. v. Safeco Ins. Co. of Am., 97 S.W.3d 21, 32 (Mo.App.2002). The rule applies only to complete agreements. CIT Group/Sales Fin. Inc. v. Lark, 906 S.W.2d 865, 868 (Mo.App.1995). If a writing omits an essential term, it is considered incomplete and extrinsic evidence may be introduced to establish the parties’ intent. Safeco, 97 S.W.3d at 32. The parol evidence rale does not exclude proof that an alleged contract omits a fundamental assumption upon which the agreement is made. Don King Equip. Co. v. Double D Tractor Parts, Inc., 115 S.W.3d 363, 373 (Mo.App.2003).

The question of whether a complete contract exists must be determined before considering interpretation of the contract or the application of the parol evidence rule. Id. Thus, the circuit court properly considered testimony regarding the prime contract and shop drawings as a factor in determining whether the parties had a meeting of the minds on the number of skylights to be installed by BESCO. We find no violation of the parol evidence rule, as the court could rely on extrinsic evidence in making the preliminary decision that no valid contract existed. Point II is denied.

In Point III, BESCO contends the circuit court erred in denying its action on account and breach of contract claims for the $700 retained by Sunglo under the KCI subcontract. In light of our holding that no valid subcontract existed, BES-CO’s retainage claim was properly denied for the work performed on Terminal C. Point III is denied.

In Point TV, BESCO contends the circuit court erred in finding that Sunglo did not breach the ETC subcontract when it failed to pay the $500 retainage amount. The court determined the retainage amount was not due because BESCO had never submitted a warranty or lien waiver, as required by the parties’ written agreement.

The relevant provision in the ETC subcontract is Section 4.1, which states:

Payment shall be made by the Contractor when the Subcontractor’s work is fully performed in accordance with the requirements of the Subcontract Documents, the Subcontractor has submitted to Contractor a signed owner acceptance from the Work, Contractor has received Subcontractor’s written warranty/guarantees as required in the Subcontract documents, and any hen waiver that may be required. A retainage of 10% will be held until the project is substantially complete and Sunglo has received payment from the Customer for the installation work.

Based on the last sentence of Section 4.1, BESCO argues there are only two precedent conditions for payment of the retainage and both have been met: the project is substantially complete, and Sun-glo has been paid by the customer, ETC. However, contractual words and phrases are not interpreted in a vacuum but by reference to the contract as a whole. Yerington v. La-Z-Boy, Inc., 124 S.W.3d 517, 520 (Mo.App.2004). The last sentence of Section 4.1 must be interpreted in a manner consistent with the preceding sentence, which actually defines when payment is due.

Section 4.1 provides that Sunglo will make “payment” when BESCO’s work is fully performed, ETC has accepted the work, and BESCO has submitted any required warranties and lien waivers. Thus, no payment is due until those conditions are met. The last sentence of Section 4.1 provides additional conditions under which Sunglo can retain 10% of the contract payment, even if the conditions in the prior sentence have been met. It would be illogical to read the final sentence in isolation, as BESCO suggests, because that would mean the 10% retainage could have been due before the 90% payment was made. Section 4.1 can only be reasonably interpreted to require that the conditions in the first and second sentence should be met before BESCO is entitled to receive full payment of the subcontract amount

Sunglo presented evidence at trial that it had requested a warranty and lien waiver from BESCO after work was completed on the ETC project. BESCO argues that the closing documents must have been provided by December 18, 1999, because Sun-glo otherwise would not have paid $9,000 of the contract price on that date. However, the record reflects that BESCO did not produce originals or copies of the closing documents at trial as evidence in support of its breach of contract claim. Sunglo provided a hand-written notation on a letter as evidence that it was still waiting for the lien waiver in July 1999, seven months after having paid more than 90% of the contract price to BESCO. The trial court could consider this evidence in determining that BESCO failed to provide all of the closing documents required for full payment under the ETC contract.

Based on the terms of Section 4.1, Sun-glo was not required to make any payment, including the retainage amount, until the warranty and lien waiver were received. Even though Sunglo proceeded to pay $9,000 without receiving the closing documents, it could still retain the balance of $500 until BESCO fully complied. BESCO failed to prove that Sunglo breached the subcontract by withholding the retainage. We find no error in the circuit court’s denial of the breach of contract claim on the ETC project. Point IV is denied.

In Points VI and VII, BESCO contends the circuit court erred in denying its request for attorney’s fees on the contract-based claims. Although attorney’s fees are generally allowed when authorized by contract or statute, the question of whether to award such fees is left to the broad discretion of the trial court. McDonald’s Corp. v. Sandbothe, 814 S.W.2d 665, 671 (Mo.App.1991). We will not disturb that determination absent an abuse of discretion. Id.

BESCO argues it was entitled to recover attorney’s fees for breach of contract on the KCI and ETC projects under Section 431.180.2, R.S.Mo.2000, or Section 34.057.6. Both statutory provisions allow an award of attorney’s fees to the prevailing party in certain breach of contract cases. The circuit court did not award attorney’s fees because BESCO failed to prevail on any of its contract claims. We have affirmed the court’s holding that no contract existed on the KCI project and that there was no breach of the contract on the ETC project. Accordingly, we find the court did not abuse its discretion in denying BESCO’s attorney’s fees for those claims on which it did not prevail. Points VI and VII are denied.

Quantum MeRuit Claim

In Point V, BESCO argues the circuit court erred in refusing to award the $1,350 in additional costs incurred during the installation of the first two skylights on the KCI Project. As an alternative to the contract-based claims in Counts I and III, BESCO sought recovery of the additional costs in Count II under a quantum meruit theory as “reasonable compensation for valuable services or materials provided.” Bellon Wrecking & Salvage Co. v. Rohlfing, 81 S.W.3d 703, 711 (Mo.App.2002).

To prevail on the quantum meruit claim, BESCO was required to prove that: (1) it provided services at Sunglo’s request or acquiescence; (2) the services were of a certain and reasonable value; and (3) Sun-glo refused to pay for the services upon demand. Mills Realty, Inc. v. Wolff, 910 S.W.2d 320, 322 (Mo.App.1995). The circuit court denied BESCO’s claim based on the second element, finding there was no evidence as to the reasonable value of the additional materials and services provided.

BESCO contends the testimony of its representative, Todd Riggs, was sufficient to prove the reasonableness of the additional costs. Riggs gave a detailed explanation that BESCO assessed $1,350 in “extra charges” for the following items and services related to installation of the first two skylights on the KCI project: $21 for screws, $240 for pick-up and delivery of skylight glass, $225 in gas and insurance costs for the use of the truck; and additional labor charges of $480 (two iron workers for 4 hours) and $384 (crane operator for 4 hours) due to late delivery of the aluminum frames. Although Riggs explained that these expenses were not anticipated at the time BESCO negotiated the $7,000 skylight installation price, he never testified as to the reasonableness of the extra charges. Riggs’ testimony fell short of proving that $1,350 was reasonable compensation for the additional materials and services provided.

The record supports the circuit court’s finding that there was no evidence regarding the reasonableness of the extra charges. Failure to prove the reasonableness of costs is fatal to a quantum meruit claim. Id. Point V is denied.

Conclusion

Finding no error, we affirm the trial court’s judgment.

All concur.

      . An action on an account is based in contract. Associated Bearings Co. v. Southwest Latex Supply, Inc., 962 S.W.2d 918, 919 (Mo.App.1998)

      . Sunglo disputed the $1,350 in additional costs but did not object to BESCO’s representation that the subcontract work was "100%” completed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ROSS & SONS PLUMBING COMPANY INC., Respondent/Cross-Appellant, v. ATLAS SUPPLY COMPANY, INC., Appellant, and Joel Suffian and Traci Suffian, Cross-Respondents.
    No. ED 83548.
    Missouri Court of Appeals, Eastern District, Division One.
    April 19, 2005.

      Jerome F. Raskas, Peter H. Love, St. Louis, MO, for appellant and cross-respondents.
    Joseph V. Neill, Thomas R. Carnes, St. Louis, MO, for respondent/cross-appellant.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Atlas Supply Company, Inc. (“Atlas”) appeals from the trial court’s judgment denying its motion for new trial because they argue the trial court: (1) exceeded its jurisdiction in amending the judgment on its own motion, rather than granting it a new trial; (2) denied it the opportunity to defend, participate in trial and present its case; (3) gave erroneous and prejudicial jury instructions; (4) should have granted its motion for new trial because of improper testimony about an offer of settlement; and (5) should have granted its motion for new trial because Ross & Sons Plumbing Company, Inc. (“Ross & Sons”) was judicially estopped from pursuing claims against it. Finally, Atlas argues the trial court erred in denying its motion for judgment notwithstanding the verdict and motion for directed verdict because Ross & Sons failed to make a submissible case on its cause of action. Ross & Sons cross-appeals and argues the trial court erred in denying its motion for judgment notwithstanding the verdict as to its quantum meruit claim against the cross-respondents, Joel Suffian and Traci Suffian, because they were provided a benefit which was not paid for.

We have reviewed the briefs of the parties and the record on appeal, and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. The trial court’s judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Michelle J. CHEW, Appellant.
    No. ED 84582.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 3, 2005.
    Margaret M. Johnston, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen.; Lisa M. Kennedy; Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Michelle Chew (Defendant) appeals from the trial court’s judgment and sentence imposed after the trial court found her guilty of one count of first-degree property damage, in violation of Section 569.100. The trial court sentenced Defendant as a prior offender to four years’ imprisonment but suspended execution of the sentence contingent upon Defendant successfully serving five years’ probation and making restitution in the amount of $7,258.78, payable in monthly installments of $135.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no jurisprudential value. 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).

      . All subsequent statutory references are to RSMo 2000, unless otherwise noted.


text:
    Leo NICHOLS, Claimant/Respondent, v. W & L STEEL ERECTORS, Employer/Appellant, and Safeco Insurance Company, Insurer/Appellant.
    No. ED 84731.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 3, 2005.
    Rick L. Montgomery, Atwill & Montgomery, L.L.C., Columbia, MO, for respondent Leo Nichols.
    Earl D. Kraus, Jefferson City, MO, for respondent Treasurer of MO as Custodian of Second Injury Fund.
    William E. Paasch, Sunset Hills, MO, for appellants.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Employer and insurer appeal from the final award of the Labor and Industrial Relations Commission affirming the award of the Administrative Law Judge. We affirm. The findings and conclusions of the Commission are not clearly erroneous, and an extended opinion would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our order affirming the judgment pursuant to Rule 84.16(b).

Claimant’s motions to strike employer’s and insurer’s brief, to dismiss the appeal, and for sanctions are denied as moot.


text:
    In the Matter of the Care and Treatment of Larry COFFMAN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84573.
    Missouri Court of Appeals, Eastern District, Division One.
    May 3, 2005.
    Emmett D. Queener, Columbia, MO, for appellant.
    James R. Layton, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Larry Coffman (“Coffman”) appeals from the probate court’s judgment entered following a jury verdict finding him to be a sexually violent predator and committing him to the custody and care of the Department of Mental Health pursuant to Sections 632.480-632.513, RSMo 2000. Coff-man raises four points on appeal.

In his first point, Coffman argues the probate court abused its discretion in denying his motion to exclude expert testimony regarding whether he had serious difficulty controlling his behavior because the expert’s testimony had no reasonably reliable scientific basis or methodology upon which to determine Coffman’s ability to control his behavior. In his second point, Coffman claims the probate court abused its discretion and committed plain error by denying his motion to exclude expert testimony because the determination of whether a person has exhibited serious difficulty in controlling his or her behavior is one a lay person can make on the basis of his or her own experience, thus rendering an expert opinion on this issue inadmissible. In his third point, Coffman alleges the probate court erred in submitting Instruction No. 8 because it allowed the jury to return a verdict which did not answer the proper, necessary, and ultimate question in the case, and minimized the jury’s sense of responsibility in determining whether Coffman was a sexually violent predator. In his final point, Coffman claims the probate court abused its discretion and committed plain error in admitting evidence that Coffman suffered from a personality disorder because the admission of this evidence violated his due process rights since evidence of a personality disorder cannot satisfy the statutory definition of a mental abnormality.

We have reviewed the briefs of the parties, the extensive legal file, and transcript on appeal. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.14(b).


text:
    In re MARRIAGE OF Karen F. PETERS and Kenneth L. Peters. Karen F. Peters, Petitioner/Respondent, v. Kenneth L. Peters, Respondent/Appellant.
    No. ED 84505.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 3, 2005.
    David R. Bohm, Sophya N. Qureshi, Danna McKitrick, P.C., St. Louis, MO, for respondent.
    Robert N. Hamilton, Jennifer R. Piper, Kruse, Reinker & Hamilton, L.L.C., St. Louis, MO, for appellant.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Former husband appeals from a judgment of the trial court modifying maintenance and child support. The trial court’s judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum opinion for their information only setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 84.16(b).

Former wife’s motion to dismiss appeal for failure to comply with Rule 84.04 is denied as moot.


author: ROBERT G. DOWD, JR., Judge.

text:
    LeeAnna JEFFERSON, Appellant, v. AMERICAN FINANCIAL GROUP, INC., d/b/a The Mortgage Source, et al., Respondent.
    No. ED 84471.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 3, 2005.

      Scott Donald Mosier, St. Louis, MO, for Appellant. ■

      Robert Edward Metzler, St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

LeeAnna Jefferson (Jefferson) appeals from the judgment on her claim for breach of fiduciary duty by American Financial Group, Inc, d/b/a the Mortgage Source (Mortgage Source). The trial court found in favor of Jefferson and awarded actual damages in the amount of $8,352.00. Jefferson contends the trial court erred in (1) failing to award punitive damages where there was sufficient evidence of legal malice on the part of Mortgage Source, and (2) awarding only broker’s fees of $8,352.00 where there was evidence to support an award of loss of equity and the amount of increased payment. The judgment is affirmed in part and remanded in part.

In July of 1998, Jefferson purchased a home and financed the purchase through Old Kent Mortgage with a thirty-year fixed rate mortgage on the principal amount of $112,195.74 at an interest rate of 7.75 percent. Jefferson paid $883.24 per month on the mortgage, which included escrow for taxes and insurance. In 1999, Jefferson sought to refinance after falling behind on her mortgage payments. Jefferson ultimately contacted Mortgage Source to assist her in refinancing her home. Jefferson completed a loan application where all her financial information was disclosed, including the fact that Jefferson was delinquent on her mortgage payments to Old Kent Mortgage because she had given money to her children leaving her financially unable to make her payments. Mortgage Source then sought an appraisal of the property by William A. Thomas (Thomas). Mortgage Source requested an appraisal in the amount of $170,000.00. Jefferson had informed Mortgage Source that at the time she purchased the home, the home was appraised for $120,000.00. Thomas submitted an appraisal valuing the property at $174,000.00.

After the closing date had been delayed several times, a closing date was set for August 24, 1999. At the closing, Jefferson first learned the terms of the refinancing. Jefferson stated she was not informed of the precise terms of the refinancing prior to the closing. Jefferson’s monthly mortgage payments increased from $883.24 to $1,304.65, an increase of $421.41 per month. The new monthly payment did not include escrow for taxes and insurance as requested by Jefferson. The loan procured by Mortgage Source was a variable rate loan with an initial interest rate of 10.8 percent on the principal amount of $139,200.00. Upon learning the terms of the new loan that were not previously disclosed to her, Jefferson testified she was “distraught” upon learning those terms at the closing. Jefferson was told that if she could make the first six months’ payments, Mortgage Source would refinance' her home for a lower interest rate at that time. After six months of struggling to make her mortgage payments, Jefferson contacted Mortgage Source to refinance her home. Mortgage Source subsequently told Jefferson they would be unable to refinance her home as it had promised.

Jefferson brought suit against Mortgage Solutions for breach of fiduciary duty and negligence, and against Thomas for fraudulent appraisal and negligent appraisal. The trial court found Mortgage \ Solutions had breached its fiduciary duty to Jefferson. The trial court awarded Jefferson actual damages in the amount of $8,352.00, the amount of the broker’s commission paid to Mortgage Source. The trial court further found that Mortgage Source’s actions did not warrant an award of punitive damages. Jefferson now appeals.

In her first point, Jefferson contends the trial court erred in failing to award her punitive damages. Jefferson maintains there was sufficient evidence to show legal malice on the part of Mortgage Source and thus, she was entitled to punitive damages. We disagree.

The trial court found Mortgage Source breached its fiduciary duty (1) by obtaining an appraisal that was unreasonably inflated, (2) by obtaining a loan in a principal amount, interest rate, and monthly payment that it knew Jefferson could not pay, and (3) by failing to keep Jefferson fully informed and by making representations regarding future refinancing that it knew or should have known would not occur. The trial court found that the representations made by Mortgage Source that it would get Jefferson a better interest rate after six months were false and that Mortgage Source failed to act in good faith and with reasonable skill, care, and diligence for the benefit of Jefferson. Relying on the trial court’s finding, Jefferson contends that the trial court erred in fading to award punitive damages where there was evidence to support such an award as reflected in the trial court’s findings.

Punitive damages are an extraordinary remedy and should be applied sparingly. Norber v. Marcotte, 134 S.W.3d 651, 662 (Mo.App. E.D.2004). Whether evidence is sufficient to warrant punitive damages is within the discretion of the trial court. Vermillion v. Pioneer Gun Club, 918 S.W.2d 827, 833 (Mo.App. W.D.1996). Punitive damages are recoverable for actual or legal malice. Id. Malice is “the doing of a wrongful act intentionally without just cause or excuse.” Id. (citing Ruppel v. Ralston Purina Co., 423 S.W.2d 752, 757 (Mo.1968)). To justify punitive damages, there must be some element of wantonness or bad motive. Vermillion, 918 S.W.2d at 833.

After a review of the record, while we are disturbed by Mortgage Source’s conduct, we cannot say there was sufficient evidence that Mortgage" Source must have acted with malice. While Mortgage Source told Jefferson at the closing that it would refinance her loan in six months and did not do so when the time came, there was no evidence that at that time of the closing Mortgage Source did not intend to perform the future refinancing or that Mortgage Source had a bad motive. Thus, the trial court did not abuse its discretion in denying punitive damages. Point denied.

In her second point, Jefferson argues the trial court erred in failing to award damages for loss of equity and increased payments. Jefferson claims there was sufficient evidence to support an award of damages for loss of equity and increased payments based on the terms of Jefferson’s new loan and those damages were not speculative. We agree.

In reviewing a court-tried case, we will affirm the judgment unless it is not supported by the 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). This court views the evidence in the light most favorable to the trial court’s judgment and grants deference to the trial court’s opportunity to judge the credibility of the witnesses. Shervin v. Huntleigh Securities Corp., 85 S.W.3d 737, 740 (Mo.App. E.D.2002). The trial court is free to believe or disbelieve all, part or none of the testimony of any witness. Id.

At the trial, Jefferson presented evidence that prior to the refinancing with Mortgage Source she had equity in her property of $7,804.26 based on the original appraisal of Jefferson’s home at $120,000 and mortgage of $112,195.74 with Old Kent. Jefferson contends she lost all of this equity as a result of the refinancing, which increased her loan amount to $139,200.00 upon an appraisal of the property at $174,000.00, which grossly over-appraised the property. Consequently, the refinanced loan was in an amount in excess of the actual market value of the property of $120,000.00 and Jefferson no longer has any equity in her property.

Jefferson also presented evidence that she suffered damage as a result of the increased payment. Jefferson’s original payments on the Old Kent Mortgage loan were $883.24 per month. After refinancing with Mortgage Source, Jefferson’s payments increased to $1,304.65 per month, an increase of $421.41 per month. Thus, as of the date of the trial in April 2004, Jefferson paid $23,598.96 for the increased payments.

Aside from the broker’s commission Mortgage Source was paid, the trial court found that the evidence presented by Jefferson regarding damages was “mostly speculative, non-specific and without support.” The trial court further stated that Jefferson failed to take into consideration the $16,000.00 she received at closing.

On appeal, Jefferson argues that the damages she requested were not speculative, but rather she presented specific evidence of her damages. Jefferson further contends that even taking into account the $16,000.00 she received at the closing, she was still entitled to $7,598.96 for the increased payments and $7,804.26 in the loss of equity, damages totaling $15,403.22. We find the damages suffered by Jefferson are specific and supported by the evidence.

In a breach of fiduciary duty action like in an action for negligent misrepresentation where a plaintiffs tort action is based on the defendant’s negligent communications, the plaintiff may recover damages necessary, to compensate the plaintiff for the pecuniary loss to her of which the misrepresentation is a legal cause. See Frame v. Boatmen’s Bank of Concord Village, 824 S.W.2d 491, 495-96 (Mo.App. E.D.1992). Generally, damages need not be established with absolute certainty, but reasonable certainty is required as to both the existence and the amount. V.J.M. Associates, Inc. v. Gilmore, 44 S.W.3d 440, 441 (Mo.App. E.D.2001)(cte%r Restatement (Second) of Torts Section 552B(1977)). The evidence must not leave the matter of damages to speculation. Id.

Here, Jefferson was directly damaged by Mortgage Source’s conduct and misrepresentation of its intent to refinance her mortgage in the future and Jefferson presented specific evidence of the amount of those damages. Jefferson would not have signed the terms of the mortgage knowing she would have difficulty making the increased payment had it not been for Mortgage Source’s reassurance that it would refinance Jefferson’s mortgage in six months getting her a lower interest rate and lowering her monthly payments. Jefferson continually paid the increased monthly payments up to the date of trial and suffered damages from the increase in her monthly mortgage payment in the amount of $23,598.86.

Furthermore, Jefferson’s loss of equity in her property was not speculative and was supported by the evidence. At the time of refinancing, Jefferson had equity of $7,598.96 in her property. Because of the refinancing terms obtained by Mortgage Source, Jefferson no longer has any equity in her home. Jefferson assumed a mortgage of $139,200 on property with an actual market value of only $120,000. We find the trial court erred in finding Jefferson’s damages for loss of equity and increased payments were speculative and not supported. Point granted.

The trial court’s denial of punitive damages is affirmed. The award of actual damages is remanded with instructions for the trial court to increase the award of actual damages in the amount of $15,403.22, representing $7,802.26 for lost equity and $7,598.96 for the increased payment amount, $23,598.86, the total increased payments paid up to the date trial, minus $16,000.00, the amount Jefferson received at closing.

PATRICIA L. COHEN, P.J., and KATHIANNE KNAUP CRANE, J., concur.

      . Thomas failed to appear at trial and a default judgment was entered against him on Jefferson’s fraudulent appraisal count in the amount of $25,000.00 in principal and $75,000.00 in punitive damages.

      . We note the trial court’s judgment did not specifically mention Jefferson’s negligence count in its judgment. However, in finding for Jefferson on Count I of her petition for breach of fiduciary duty, the trial court implicitly ruled on Jefferson’s count for negligence. If a judgment, by implication, necessarily carries with it a finding upon other counts, the judgment will be sustained as final even though the count is not specifically mentioned. Village Lutheran Church v. City of Ladue, 997 S.W.2d 506, n. 1 (Mo.App. E.D.1999).

      . We note that we are without the benefit of a respondent’s brief from Mortgage Source.

      . In finding a mortgage broker owes a fiduciary duty to a client, the trial court relied in part on A.G. Edwards & Sons, Inc. v. Drew, 978 S.W.2d 386 (Mo.App. E.D.1998). In that case, this court held that an insurance broker owes a fiduciary duty to an insured. Id. at 394-95.


author: CLIFFORD H. AHRENS, Presiding Judge.

text:
    Robin UNDERWOOD, Respondent, v. Darcy UNDERWOOD, Appellant.
    No. ED 84444.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 3, 2005.

      James J. Leightner, Clayton, MO, for appellant.
   CLIFFORD H. AHRENS, Presiding Judge.

Darcy Underwood (“wife”) appeals the judgment of dissolution of the trial court ordering Robin Underwood (“husband”) to pay her maintenance of $1,200.00 for a period of thirty-six months. Wife claims that it was error for the trial court to limit the duration of the maintenance award. We affirm in part and reverse and remand in part.

A judgment and decree of dissolution was entered, dissolving the marriage of husband and wife. Pursuant to the judgment, husband was ordered to pay wife $1,200.00 per month in maintenance. This award was limited to a period of thirty-six months. Wife filed a motion to amend the judgment or alternative motion for new trial. The motion was called, heard and submitted. However, the trial court failed to rule on the motion within ninety days after the date upon which the motion was filed. Therefore, pursuant to Missouri Supreme Court Rule 78.06, the motion was overruled. Wife now appeals.

We review the judgment of the trial court under the same standard applied to any other court-tried case. Aurich v. Aurich, 110 S.W.3d 907, 911 (Mo.App.2003). We will affirm the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously applies or declares the law. Id.

In her sole point on appeal, wife claims that the trial court abused its discretion in limiting her maintenance award to thirty-six months. She argues that there was no evidence presented to support a finding that she would become self-sufficient in that time.

The trial court is vested with broad discretion in its award of maintenance. Aurich, 110 S.W.3d at 914-15. We will interfere with the maintenance award of the trial court “only when it is patently unwarranted....” Id. (quoting Hatchette v. Hatchette, 57 S.W.3d 884, 891 (Mo.App.2001)).

With respect to limiting the duration of maintenance, “ ‘[t]here is a judicial preference for awards of maintenance of unlimited duration.’ ” Aurich, 110 S.W.3d at 919; (quoting McIntosh v. McIntosh, 41 S.W.3d 60, 72 (Mo.App.2001)). The trial court’s decision to limit the duration of a maintenance award is warranted only where there is substantial evidence that the financial condition of the parties is subject to an impending change. Id; (citing Allen v. Allen, 961 S.W.2d 891, 896 (Mo.App.1998)). The trial court should not prospectively terminate maintenance if no evidence is presented or no reasonable expectation exists that the circumstances of the parties will be substantially different in the future. Id. “Limitation on the duration of a maintenance award based on mere speculation or not supported by sufficient evidence that the parties’ circumstances will be markedly different in the future constitutes an abuse of discretion.” Lincoln v. Lincoln, 16 S.W.3d 346, 347 (Mo.App.2000); (citing Judy v. Judy, 998 S.W.2d 45, 51 (Mo.App.1999)).

In the present case, there is ho evidence in the record to indicate that wife’s financial resources are likely to change in the immediate future. Wife testified that she has worked since the separation, earning approximately $8.00 per hour at Lowes. She had to leave her position because of day care expenses for her children. She testified that she would like to pursue nursing school; however, there was no evidence presented as to the duration of wife’s educational endeavor. Wife testified that the particular nursing program she investigated had differing lengths. Wife believed that the longest program was four years; however, she did not know if she would have to take additional classes prior to entering the nursing program in order to be admitted. Wife also testified that while she hoped to finish school in a reasonable time, she has minor children with special needs to care for . Wife testified that two of the minor children suffer from depression and require medication. Wife had to put her education on the “back burner” when one of the minor children attempted suicide after husband and wife separated. Additionally, one of the minor children suffers from cerebral palsy and requires physical, occupational, and speech therapy. Wife herself also suffers from depression, which requires medication.

The court found that wife was not able to meet her reasonable monthly expenses and was in need of maintenance. There was no evidence that wife was likely to become self-sufficient in thirty-six months. At the time of trial, wife had not yet fully investigated the nursing program nor had she been advised as to what requirements for admission would need to be met, or what length of program she would be entering.

Wife’s plans were indefinite at the time of trial, and any potential change in her financial circumstances therefrom would be based solely on speculation. As such, the trial court abused its discretion in limiting wife’s maintenance award to thirty-six months. See Hernandez v. Hernandez, 872 S.W.2d 161 (Mo.App.1994) (the court abused its discretion in limiting duration of maintenance award to thirty-six months where a wife anticipated receiving a college degree within two years, but did not know “exactly” when she would receive her degree, or when she would be able to find self-supporting employment); and Grams v. Grams, 789 S.W.2d 846 (Mo.App.1990) (the court determined that a wife’s plans to attend interior decorating school were indefinite and increase in income was speculative, and did not warrant a limitation on the duration of maintenance).

The judgment of the trial court is reversed and remanded with instructions to the trial court to award wife modifiable maintenance of unlimited duration of $1,200.00 per month. In all other respects, the judgment is affirmed.

GLENN A. NORTON and NANNETTE A. BAKER, JJ., concur.

      . The court found that the three youngest minor children had special needs.


text:
    David BROWNING, Sharon Browning, Janet Groll, Jacqueline Aumer, Laura Kamm, Jonathan Tag, Angelyn Tag, and Britz, Inc., Plaintiffs/Appellants, v. CITY OF ST. LOUIS, Excise Division of the Department of Public Safety of the City of St. Louis, and Robert Kraiberg, Excise Commissioner, Defendants/Respondents.
    No. ED 84191.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 3, 2005.
    Elkin L. Kistner, Jones, Haywood, Bick, Kistner, & Jones, P.C., St. Louis, MO, for respondents.
    Edward J. Hanlon, City Counselor-City of St. Louis, St. Louis, MO, for appellants.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

This is an appeal from a judgment upholding the Excise Commissioner’s approval of a retail liquor license. The decision of the Excise Commissioner is supported by competent and substantial evidence on the whole record. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Perry R. WOODS, Defendant/Appellant.
    No. ED 84609.
    Missouri Court of Appeals, Eastern District, Division One.
    May 3, 2005.
    Kent Denzel, Columbia, Missouri, for Appellant.
    Deborah Daniels, Shaun J. Maekel-prang, co-counsel, Jefferson City, Missouri, for Respondent.

      Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Perry R. Woods (Defendant) appeals from a judgment of conviction of stealing. Defendant challenges the sufficiency of the evidence to support his conviction. We have reviewed the briefs of the parties and the record on appeal and conclude that sufficient evidence existed for a reasonable jury to find Defendant guilty beyond a reasonable doubt of stealing. State v. Shinn, 921 S.W.2d 70, 72-73 (Mo.App. E.D.1996). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Criminal Procedure 30.25(b).


author: LAWRENCE G. CRAHAN, Judge.

text:
    Jammy and Julie EDWARDS, Plaintiffs/Appellants, v. HYUNDAI MOTOR AMERICA, Defendants/Respondents.
    No. ED 84940.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 3, 2005.

      Adam J. Krohn, Kristin M. Liddle, Krohn & Moss, Ltd., Chicago, IL, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for respondent.
   LAWRENCE G. CRAHAN, Judge.

Jammy and Julie Edwards (“Buyers”) appeal the judgment dismissing their claims pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. sec. 2301 et seq. (‘Warranty Act”), against Hyundai Motor America (“Seller”) as untimely. We reverse and remand.

In September 2001, Buyers purchased a new 2001 model Elantra from Seller. Buyers received a six-year or 72,000 mile bumper-to-bumper warranty on the vehicle. Soon after Buyers took possession, the vehicle began to exhibit various defects, including a malfunctioning transmission, substandard trim, defective brakes and a leaking engine. Despite numerous attempts to repair the vehicle, Seller was unable to cure the defects or repair them as required by the terms of the warranty.

In January 2004, Buyers filed suit alleging three counts pursuant to the Warranty Act, including breach of written warranty, breach of implied warranty of merchantability and revocation of acceptance.

The Warranty Act does not contain its own statute of limitations. When a federal statute creates a cause of action enforceable in state court, state courts are to apply the state statute of' limitations governing the state law cause of action most closely analogous to the federal action at hand. DelCostello v. Int’l Bhd. Of Teamsters, 462 U.S. 151, 159, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In addition, courts will apply the state time limitation to a cause of action under the federal statute only if it is not inconsistent with federal policy to do so. Nitcher v. Newton County Jail, 751 S.W.2d 800, 803 (Mo.App.1988).

Seller moved to dismiss Buyers’ claims as untimely based on the statute of limitations found in Missouri’s Lemon Law, sections 407.560 to 407.579 RSMo 2000. The statute of limitations governing claims under the Lemon Law requires a plaintiff to file claims within six months following the expiration of the terms, conditions or limitations of the express warranty or •within eighteen months of delivery of the new motor vehicle to the consumer, whichever is earlier, or within ninety days of final action on any informal dispute settlement procedure, if utilized. Section 407.573.3. Buyers urged that the state law cause of action most analogous to the Warranty Act is Missouri’s version of the Uniform Commercial Code (“UCC”), which requires a plaintiff to file claims within four years after the cause of action accrued. Section 400.2-725. The trial court agreed with Seller and dismissed Buyers’ claims. Buyers appealed.

The issue presented to this court on appeal is an issue of first impression. No Missouri appellate court has previously decided whether the statute of limitations codified in the Lemon Law or Missouri’s UCC provisions applies to breach of warranty claims regarding new motor vehicles made pursuant to the Magnuson-Moss Warranty Act. As such, Buyers are asking this court to interpret the Lemon Law.

Construction of a statute is a question of law and does not involve judicial discretion. Delta Air Lines, Inc. v. Director of Revenue, 908 S.W.2d 353, 355 (Mo. banc 1995). As such, it falls within this court’s province of independent review, and consequently, no deference is given the trial court’s determination of the law. St. Louis County v. B.A.P., Inc., 25 S.W.3d 629, 631 (Mo.App.2000). In construing statutes, courts determine legislative intent from the language used and consider words in their plain and ordinary meaning, recognizing that the law favors a statutory construction that tends to avert an unreasonable result. Allen v. Public Water Supply Dist. No. 5 of Jefferson County, 7 S.W.3d 537, 540 (Mo.App.1999). When interpreting a statute, our primary role is to ascertain the intent of the General Assembly from the language used in the statute and, whenever possible, to give effect to that intent. Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993). Provisions of an entire legislative act must be construed together and, if reasonably possible, all provisions must be harmonized. B.A.P., 25 S.W.3d at 631. A statute must not be interpreted narrowly if such an interpretation would defeat the purpose of the statute. Id. Moreover, it is presumed every word, clause, sentence and provision of a statute have effect; conversely, it will be presumed that idle verbiage or superfluous language was not inserted into a statute. Id.

In their first point, Buyers argue that the trial court erred in applying the statute of limitations found in Missouri’s Lemon Law because the language of the Lemon Law itself makes it clear that claims for diminished value due to breach of warranty are not governed by the Lemon Law. Buyers contend that since the Lemon Law does not include the breach of warranty statutes within its provisions, the four-year statute of limitations for breach of warranty claims provided under the Missouri UCC should apply to their claim for diminished value due to breach of warranty under the Warranty Act. We agree.

Section 407.563 of the Lemon Law, which is titled “Law applicable to breach of new motor vehicle warranties,” states that “[t]he provisions of sections 400.2-602 to 400.2-609, RSMo., shall not apply to sales of new motor vehicles and such sales shall be governed by the provisions of sections 407.560 to 407.579.” The sections of the Missouri UCC that the Lemon Law refers to only address claims for the rejection and acceptance of goods, the revocation of acceptance, and the assurance of performance. Accordingly, Buyers concede that the Lemon Law, and specifically section 407.573.3, supersedes the UCC with respect to their claim for the revocation of acceptance, and they do not challenge the trial court’s dismissal of the third count of their petition.

Buyers argue, however, that the Lemon Law was not intended by the legislature to extend to diminished value damages pursuant to breach of warranty claims. In support of their argument, Buyers point out that sections 400.2-602 to 400.2-609, which are included in section 407.563, do not include the claims for breach of warranty, which are addressed in UCC sections 400.2-313, -314, and 400.2-725. Seller counters by claiming that sections 400.2-313 and -314 set forth only how express warranties and implied warranties of merchantability are created without addressing any remedy for a breach of such warranty. Seller also concedes that section 400.2-725, concerning the statute of limitations in contracts for sale, does address breach of warranty. But it argues that this section was not included in section 407.563 because it is “clear from the plain and ordinary meaning of section 407.563” that the Lemon Law shall apply to all sales of new motor vehicles and that it is presumed that the legislature was aware of the UCC statute of limitation for breach of warranty when it enacted the Lemon Law.

While section 400.2-313 certainly deals with the creation of express warranties by promise, description or sample, section 400.2-314 states that “a warranty that the goods shall be merchantable is implied in a contract for their sale” and deals with what it means for goods to actually- be merchantable. Section 407.563 does not supercede the UCC; rather, it merely modifies the notice requirement for establishing breach stated in section 400.2-607 for actions where a new motor vehicle is involved.

The Lemon Law states only that the provisions of sections 400.2-602 to 400.2-609 shall not apply to sales of new motor vehicles, and it does not include, for example, any of the remedies provisions available under the UCC in sections 400.2-711 to 400.2-717. In addition, the Lemon Law provides remedies available to a buyer of a nonconforming motor vehicle only in the form of repair procedures and ultimately the refund of the purchase price or replacement of the vehicle, at the manufacturer’s option, but it does not state that it precludes other remedies. The UCC, on the other hand, provides other remedies for breach of warranty on nonconforming goods such as cover damages, incidental and consequential damages, and a measure of damages allowing for the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had they been as warranted. The Lemon Law, by'its own terms, only changes the terms and procedures for the remedy of revocation of acceptance. Additionally, section 407.569 states: “Except as provided in subsection (1) of section 407.560, nothing in sections 407.560 to 407.579 shall in any way limit the rights or remedies which are otherwise available to a consumer at law or in equity.” Thus, the Lemon Law also specifically states that other remedies are still available and that it does not preclude all other remedies at law. It is presumed the legislature was aware of all other remedies, and it chose not to limit their application in breach of warranty actions concerning new motor vehicles. It appears the legislature was simply altering the structure of remedies for revocation of acceptance and refund or replacement of the vehicle by limiting the availability of these remedies to only a short period after the vehicle is purchased.

These differences suggest that it was not the intent of the legislature to super-cede the UCC in all respects with regard to nonconforming new motor vehicles. Also, nowhere does the Lemon Law reveal that there was an intent to preclude any remedy for breach of the implied warranty of merchantability or any other implied warranties as it speaks only of express warranties. Appellate courts presume the legislature does not enact meaningless provisions, and courts presume the legislature acts with the knowledge of statutes involving similar or related subject matters. Allen, 7 S.W.3d at 540. Thus, we do not believe that the Missouri Lemon Law has completely superceded the UCC in Missouri with respect to new motor vehicles because the legislature would have expressly done so had it so intended. Accordingly, we find that the trial court erred in applying the Lemon Law statute of limitations to Buyers’ claims for diminished value due to breach of warranty under the Warranty Act.

In their second point on appeal, Buyers claim that the trial court erred in applying the statute of limitations found in the Lemon Law because the state statute most analogous to the Warranty Act is the Missouri UCC and not the Lemon Law. Buyers claim that Missouri’s UCC is the most analogous state statute to their breach of warranty action brought pursuant to the Warranty Act and that the statute of limitations in the UCC should apply. Buyers further claim that because the Warranty Act applies to all consumer products and the UCC applies to the sale of all goods and thus all warranty, breaches, the two are more analogous than the Warranty Act and the Lemon Law, which applies only to new motor vehicles. We agree.

Congress enacted the Magnu-son-Moss Warranty Act in 1974 to govern written warranties on consumer products. See Auto. Imps. of American, Inc. v. Minn., 871 F.2d 717, 718 (8th Cir.1989). State warranty law lies at the base of all warranty claims under the Warranty Act. Walsh v. Ford Motor Co., 807 F.2d 1000, 1016 (D.C.Cir.1986). The purpose of the Warranty Act is to regulate written warranties on consumer goods and to provide injured consumers with a cause of action against manufacturers who fail to comply with its requirements. Price v. Freedom Ford, Inc., 46 Va. Cir. 129, 131 (1998). The Warranty Act is not limited, like the Missouri Lemon Law, to the warranty requirements of new motor vehicles; rather, it applies to any consumer product. As Buyers argue, there should not be a different statute of limitations for different products under the Warranty Act.

Recently, in Hillery v. Georgie Boy Mfg., Inc., 341 F.Supp.2d 1112, 1115 (D.Ariz.2004), a federal district court held that the cause of action most analogous to a breach of warranty claim under the Warranty Act is an action, for a breach of warranty in a contract for sale. The court reasoned that a breach of warranty claim brought pursuant to the Warranty Act applies to all consumer goods and is not limited to breaches of motor vehicle warranties. Id. It stated that the Arizona Motor Vehicle Warranty Act is not the most analogous state statute because it only applies to motor vehicles, and the court applied • the statute of' limitations from the UCC adopted in the state. Id. at 1114; see also Price, 46 Va. Cir. at 131 (noting that “[m]ost courts apply the UCC statute of limitations to Magnuson-Moss actions”).

Seller claims that the Missouri Lemon Law is the most analogous state statute to the Warranty Act and that its statute of limitations should govern new motor vehicle warranty claims brought pursuant to the Warranty Act. Seller bases its claim on the fact that the Lemon Law deals with the more particular subject matter of new motor vehicle warranties that are at issue in the instant case and it was enacted after both the Warranty Act and the UCC. Thus, Seller argues that the Lemon Law should prevail over the earlier statutes of a more general nature. See State ex rel. Safety Roofing Systems, Inc. v. Crawford, 86 S.W.3d 488, 492 (Mo.App.2002) (noting that a chronologically later statute, which functions in a particular way, will prevail over an earlier statute of a more general nature, and the latter statute will be regarded as an exception to or qualification of the earlier general statute when the statutes conflict).

Seller emphasizes that there are many similarities between the Warranty Act and the Lemon Law that neither have in common with the UCC. For instance, both the Warranty Act and the Lemon Law allow for the recovery of attorney’s fees, both have provisions referring to informal dispute settlement procedures, both provide for the same remedies to the buyer of repair, replacement, or refund, and both have the similar purpose of protecting the consumer. The UCC, on the other hand, does not allow for the recovery of attorney’s fees, does not encourage other dispute settlement procedures, and does not have as its purpose the protection of the consumer.

Although the UCC does not provide for the remedies of repair, replacement, or refund, it does give the buyer other similar remedies in addition to also allowing the buyer to keep the nonconforming goods and have a right to receive payment for the difference in value if the goods were not as warranted. The Warranty Act and the UCC also have in common the fact that they both deal with all goods, while the Lemon Law only applies to new motor vehicles. Another important difference between the Warranty Act and the Lemon Law is that the former provides for a remedy for implied warranties, as does the UCC, while the Lemon Law does not.

Here, the damages Buyers have prayed for under the Warranty Act are very similar to those available under the UCC and are not allowed under the Lemon Law. Buyers chose to file their cause of action under the Warranty Act. They are not asking for a full refund or a replacement vehicle due to Seller’s inability to conform the car to the warranty; instead, they want to keep the vehicle and they are asking for the difference in the market value of the car. As Buyers urge, section 407.579 clearly shows that the legislature contemplated that other remedies — that may even have longer statutes of limitation — could be available in certain situations.

More fundamentally, however, Seller’s argument fails because applying the statute of limitations found in the Lemon Law to all breach of warranty claims would essentially render virtually all new car warranties fraudulent. Although a dealer may entice purchasers with a promise of a six-year or 72,000 mile bumper to bumper warranty, such a warranty would be a fraud because it would be unenforceable unless suit is filed within eighteen months from delivery of the vehicle. This effect simply could not have been what the legislature intended when it enacted the Lemon Law.

For the foregoing reasons, we hold that the statute of limitations applicable to claims under the Magnuson-Moss Warranty Act in Missouri is the four-year statute of limitations found in section 400.2-725. Thus, the trial court erred in dismissing Buyers’ claims for breach of written warranty and breach of implied warranty. We need not discuss the remaining points on appeal because our discussion of Buyers’ first two points is sufficient to dispose of the merits of the appeal. The cause is reversed and remanded for further proceedings consistent with this opinion.

LAWRENCE E. MOONEY, P.J., and MARY K. HOFF, J., Concur.

      . All state statutory references are to RSMo 2000.

      . Seller claims that Buyers’ appeal is untimely. We disagree. Although styled as a "Motion for Reconsideration,” Buyers’ after-trial motion was clearly directed toward what Buyers claimed was an error of law by the trial court and thus should properly be considered as a motion for new trial. See Taylor v. United Parcel Service, Inc., 854 S.W.2d 390, 392 (Mo. banc 1993). It is well established that a party will not be denied substantive review merely because it mislabeled its new trial motion. Korte Constr. Co. v. Deaconess Manor Ass’n., 927 S.W.2d 395, 399 (Mo.App.1996). A motion for new trial is an authorized after-trial motion which extends the time in which to file an appeal. We hold that Buyers' appeal to this court was timely and we have jurisdiction.


text:
    Richard BARNES, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85154.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 3, 2005.
    Mark A. Grothoff, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Movant Richard Barnes appeals from the denial of his motion to vacate the judgment and sentence made pursuant to Rule 29.15. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


author: PATRICIA L. COHEN, Presiding Judge.

text:
    Linda MONROE, Appellant, v. WAL-MART ASSOCIATES, INC., Respondent.
    No. ED 85110.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 3, 2005.

      David N. Damick, St. Louis, MO, for appellant.
    Sarah H. Hale, St. Louis, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Introduction

Linda Monroe (“Claimant”) appeals the final award of the Labor and Industrial Relations Commission (“Commission”) denying Claimant’s request for attorney’s fees and costs pursuant to Section 287.560 RSMo 2000. Because the facts found by the Commission do not support the denial of Claimant’s request for costs, attorney’s fees and interest, we reverse and remand.

Statement of Facts and Proceedings Below

Claimant began working as a stocker for Wal-Mart in the beginning of May 2000. As a stocker, Claimant unloaded trucks, transported freight and placed it on shelves. While at work on May 16, 2000, Claimant felt a pop or rip and severe abdominal pain when she lifted a fifty-pound bag of dog food. When Claimant told her supervisor about the injury, he told her to clock out and leave for the emergency room. Claimant told her supervisor that she was going to St. Joseph’s Hospital.

At the hospital, Claimant underwent a CT scan of her abdomen and pelvis. The CT report indicated a “small lower abdominal ventral hernia containing a loop of small bowel.” The physician who discharged Claimant: (1) prescribed Vicodin; (2) issued a 10-pound lifting restriction; and (3) ordered Claimant to follow up with Dr. McAllister concerning hernia repair.

After her discharge from the hospital, Claimant stopped at Wal-Mart to deliver a copy of the lifting restriction sheet. The following morning, Claimant contacted the personnel manager who confirmed that Wal-Mart was in receipt of the lifting restriction. In their telephone conversation, the personnel manager informed Claimant that Wal-Mart would not compensate Claimant for her medical bills because Claimant’s injury was not work-related. Approximately one week later, Claimant went to the store and spoke to the store manager who stated that Wal-Mart requires all employees to lift fifty to sixty pounds, and as a result, the store manager terminated Claimant’s employment.

Claimant filed a formal Claim for Compensation with the St. Louis Office of the Division of Workers’ Compensation on May 30, 2000 alleging that on May 16, 2000 she suffered a hernia when “while in the course and scope of employment [Claimant] was lifting bags of dog food.” Claimant retained counsel who, in a letter dated June 21, 2000, reiterated to Wal-Mart that Claimant: (1) suffered a workplace injury that had been diagnosed as a hernia in need of immediate medical attention; (2) reported the injury to her immediate supervisor and to the appropriate person in the Personnel Department who denied coverage for medical treatment; and (3) is entitled to workers’ compensation benefits. On June 27, 2000, Wal-Mart filed its Answer to Claim for Compensation with the Division of Workers’ Compensation admitting that Wal-Mart employed Claimant and that the parties were subject to the provisions of the Missouri Workers’ Compensation Act but denying the specific allegations in Claimant’s Claim for Compensation.

Claimant visited her doctor on July 25, 2000. Records from Dr. Jerry Meyers dated July 25, 2000, state “? hernia” and refer to an injury dated May 16, 2000 when Claimant lifted many forty to fifty pound bags of dog food. Dr. Meyers apparently was not provided with the CT scan done on May 16, 2000 until on or about December 26, 2001. In light of Wal-Mart’s refusal to pay for medical treatment as well as Claimant’s inability to pay for her own care, Claimant did not seek additional treatment for her hernia for some time.

When, after attempting several light-duty jobs, Claimant’s pain increased, Claimant returned to Dr. Meyers. After examining Claimant on December 26, 2001, Dr. Meyers informed Claimant that her hernia could rupture, strangulate and catch a portion of the bowel if she continued working. At that time, Dr. Meyers recommended surgery. Dr. Meyers also issued a detailed report regarding Claimant’s health, the results of the CT scan and the causal connection between Claimant’s workplace injury and her hernia.

Wal-Mart concedes that it received from Claimant’s counsel Dr. Meyers’s December 26, 2001 report. In addition to the demand that accompanied Dr. Meyers’s report, Claimant’s counsel sent a demand for emergency medical treatment on December 28, 2001. On January 8, 2002, counsel provided notice to Wal-Mart that Claimant would undergo surgery and that, in light of Wal-Mart’s refusal to pay for treatment, Dr. Meyers .agreed to operate on Claimant after Claimant signed a hen agreeing to pay Dr. Meyers from any proceeds she later received from Wal-Mart. In correspondence dated January 9, 2002, Wal-Mart denied Claimant’s claim. Two days later, Dr. Meyers performed surgery to repair Claimant’s hernia.

The parties resumed contact on April 18, 2002 when the claim went to mediation at the Division of Workers’ Compensation. Mediation was unsuccessful. Months after the first two unsuccessful mediations, Wal-Mart informed Claimant’s counsel that it had made an appointment for Claimant to be seen by its own medical doctor.

On October 22, 2002, Claimant met with Wal-Mart’s medical examiner, Dr. Brian Rogers. Dr. Rogers prepared a report the following day. In his report, Dr. Rogers stated that Claimant’s hernia was in fact the result of the workplace injury. Approximately one month later, Wal-Mart sent Dr. Rogers a letter urging him to reconsider his opinion regarding causation. On November 26, 2002, Dr. Rogers issued a supplemental report and reiterated his opinion by stating, “I ... have no changes to my report issued to you on October 22, 2002.”

Despite Dr. Rogers’s unequivocal conclusion that Claimant’s hernia was the result of the alleged workplace injury, Wal-Mart continued to deny compensation. On January 20, 2008, Claimant’s counsel made an additional written demand for. settlement in light of Dr. Rogers’s conclusions. Due to the parties’ inability to settle the claim, a hearing was scheduled for May 22, 2003. In preparation for the hearing, counsel for Claimant deposed Dr. Rogers and Dr. Meyers.

The hearing took place, as scheduled, on May 22, 2003. At the beginning of the hearing, Wal-Mart conceded, for the first time, that the injury occurred in the scope and course of Claimant’s employment, the workplace injury caused Claimant’s hernia and Wal-Mart had notice of the workplace injury. At the hearing, Wal-Mart did not call witnesses or present any medical evidence to refute the past medical bills or periods of disability.

On November 20, 2003, the Administrative Law Judge (“ALJ”) issued her Award granting most of Claimant’s past medical bills, Temporary Total Disability (“TTD”) and the percentage of the Permanent Partial Disability (“PPD”) Claimant requested. The ALJ’s Award did not award interest on the medical bills and TTD. The Award also denied Claimant’s request for costs and fees as the “full cost of the proceedings” pursuant to Section 287.560. Without hearing additional oral argument, the Commission affirmed and adopted the ALJ’s Award. Claimant appeals the denial of attorney fees and costs.

Standard of Review

Our review of a workers’ compensation award is limited to “a single determination whether, considering the whole record, there is sufficient competent and substantial evidence to support the award.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). We will modify, reverse, remand or set aside the award only if the Commission acted in excess of its powers, the award was procured by fraud, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to warrant making the award. Id. at 222.

Discussion

In her sole point on appeal, Claimant contends that the Commission’s denial of her request for costs and fees pursuant to Section 287.560 was not supported by sufficient competent and substantial evidence. In support of her contention, Claimant asserts, inter alia, that Wal-Mart’s actions were without reasonable grounds in that Wal-Mart: (1) had notice of Claimant’s workplace injury and medically diagnosed hernia; (2) failed to make a reasonable investigation; (3) failed to heed the clear opinion of its own medical examiner that Claimant’s hernia was work-related, required surgery and justified many weeks of TTD; (4) refused to make an offer in settlement for a period of years and, despite its own medical examiner’s opinion, only offered one week of TTD, two weeks prior to the May 22, 2003 hearing; and (5) defended this case through hearing without possessing or offering any contrary medical evidence.

Without citing to any case law to support its position, Wal-Mart responds that it had a reasonable basis to deny Claimant’s claim because the hospital records from May 16, 2000 do not contain references to a work-related injury and instead contain a long history of pre-existing abdominal and gynecological problems. Accordingly, Wal-Mart contends that Claimant did not meet her burden of proving causation until she forwarded Dr. Meyers’s report in December 2001. In addition, Wal-Mart claims that the medical records it later collected from three unidentified sources contradicted Claimant’s contention that she sustained the hernia while working at Wal-Mart.

The ALJ, and ultimately the Commission, agreed with Wal-Mart, finding: “treatment records prior to [December 26, 2001] included statements from [Claimant] of having treatment for similar abdominal problems prior to May 16, 2000; specifically reflected that [Claimant’s] symptoms were not as a result of a work related accident; and/or gave no indication that [Claimant’s] complaints were as a result of a work related event in May of 2001[sic] while performing her duties at Wal-Mart.” The ALJ ultimately refused to award the whole cost of the proceedings pursuant to Section 287.560 because Wal-Mart had reasonable grounds upon which to defend this cause in that this case required expert opinion on the question of causation, which Claimant did not provide until December 26, 2001 and that Wal-Mart “timely sought an opinion of their [sic] own which was supplied by Dr. Rogers on October 23, 2002.” Our review of the record indicates that this finding is not supported by competent, substantial evidence and is, instead, contrary to the overwhelming weight of the evidence.

According to Section 287.560, the costs associated with a Division or Commission proceeding generally are paid by the state treasury fund. DeLong v. Hampton Envelope Co., 149 S.W.3d 549, 555 (Mo.App. E.D.2004). Section 287.560 also provides an exception to this general rule. That section states, in pertinent part, “[i]f the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them.” Section 287.560. The whole cost of the proceedings consists of “all amounts the innocent party expended throughout the proceeding brought, prosecuted, or defended without reasonable grounds, including attorney’s fees.” DeLong, 149 S.W.3d at 555.

We are guided in our disposition of this matter by the recent Missouri Supreme Court case of Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. banc 2003)(overruled on other grounds by Hampton, supra). In Landman, an employee sustained two separate workplace injuries. Id. at 243. In response to the employee’s shoulder injury, the employer refused to pay. Id. at 250. Ultimately, the employer agreed to pay medical bills and temporary benefits for the shoulder injury if its doctor determined that the injury was work-related. Id. Thereafter, employer’s medical examiner found that the employee’s shoulder injury was work-related and required medical care. Id. Despite this evidence, the employer refused to pay and forced a hardship hearing. Id.

Warning that the Commission should only order the costs of proceedings under Section 287.560 where the issue is clear and the offense egregious, the Court found that the employer did not have a basis for denying treatment once its own doctor concluded that the injury was work-related. Id. Accordingly, the Court held that substantial evidence supported the Commission’s finding that employer defended the casé without reasonable grounds. Id. The Court also held that the employer’s defense was without reasonable grounds in that the employer did not put on any evidence to support its defense. Id.

Wal-Mart attempts to distinguish the case at hand from Landman by stating that, in this case, there has been no egregious or outrageous conduct. We disagree. In front of the ALJ and on appeal, Wal-Mart relies primarily on a standard “Admission Record” form presumably generated by St. Joseph’s Hospital on the date of the injury. The form contains the word “NO” in a box captioned “accident wk. rel.” The form is not signed by Claimant and there is no indication in the record that she read it. Nor can the form reasonably be described as embodying a doctor’s opinion that Claimant’s problems were not caused by a work-related injury. While we acknowledge that the “Admission Record” appears to describe Claimant’s injury as not work-related, the absence of a “yes” on the computer-generated form does not negate the probative force of the remaining medical records nor does it negate the egregiousness of Wal-Mart’s conduct. Even a cursory review of other medical records generated by St. Joseph’s Hospital the same day reveals the CT scan demonstrating a hernia, discharge instructions ordering Claimant to follow-up “with Dr. McCallister re repair of hernia” and the lifting limitations. The diagnosis of a hernia on May 16, 2000 is consistent with Claimant’s claim that she injured herself while lifting heavy bags of dog food.

Wal-Mart also relies on medical records other than those generated on May 16, 2000 that demonstrate that Claimant suffered from previous abdominal complaints, including a number of emergency room visits for menstrual-type cramps, a long history of painful gynecological problems, including endometriosis and a prior vaginal hernia repair. However, none of these records either preclude a work-related injury causing a hernia on May 16, 2000 or, more importantly, contradict the objective findings (CT scan) on May 16, 2000 that Claimant suffered a “small midline ventral abdominal hernia.” Simply because Claimant had a history of previous gynecological problems and vague abdominal complaints which were noted in the May 16, 2000 records, Wal-Mart cannot justify years of refusing treatment and defending against Claimant’s claim where an explanation for her complaints was diagnosed on the date she sought treatment for her injury.

Regardless of what the medical records disclosed, there is no dispute that Claimant’s counsel forwarded, and Wal-Mart received, Dr. Meyers’s December 26, 2001 report in which Dr. Meyers discussed Claimant’s health, the results of the CT scan and the causal connection between Claimant’s workplace injury and her hernia.

The record further establishes that, on January 8, 2002, after multiple demands for compensation were unsuccessful, counsel provided notice to Wal-Mart that Claimant signed a lien agreeing to pay Dr. Meyers from any proceeds she later received from Wal-Mart and that Claimant would undergo hernia repair surgery. Despite Dr. Meyers’s report and unequivocal conclusion that the hernia was the result of Claimant’s workplace injury Wal-Mart again denied Claimant’s claim on January 9, 2002.

Moreover, there is no evidence that Wal-Mart even scheduled an examination for Claimant "with its own medical examiner until months after two unsuccessful me-diations. In fact, the record reflects that it was not until more than eight months after Claimant’s emergency surgery that Wal-Mart scheduled Claimant for an appointment with its medical examiner. Claimant did not actually see Wal-Mart’s medical examiner until October 22, 2002. In the report prepared the day after that examination, Wal-Mart’s examiner, Dr. Rogers, concluded that Claimant’s hernia was the result of the workplace injury on May 16, 2000.

Despite Dr. Rogers’s confirmation that Claimant’s hernia was the result of her workplace injury, Wal-Mart did nothing to further settlement, resume negotiations or promptly resolve this claim. Instead, Wal-Mart waited approximately one month and sent Dr. Rogers a letter urging him to reconsider his opinion regarding causation. When, on November 26, 2002, Dr. Rogers issued a supplemental report stating, “I ... have no changes to my report issued to you on October 22, 2002[,]” Wal-Mart again did nothing to prompt resolution of Claimant’s claim.

Even though Wal-Mart was armed with Dr. Rogers’s repeated, unequivocal conclusions that Claimant’s hernia was the result of the alleged workplace injury, Wal-Mart continued to deny compensation. Moreover, when, almost two months later, Claimant’s counsel made an additional written demand for settlement in light of Dr. Rogers’s conclusions, Wal-Mart did nothing to resolve this claim. Such actions were both egregious and outrageous.

In the wake of Wal-Mart’s continued refusal to resolve this matter despite both its own and Claimant’s doctor’s unwavering opinion that Claimant’s hernia was the result of her workplace injury, counsel for Claimant was compelled to prepare for the May 22, 2003 hearing. In preparation for the hearing, counsel for Claimant deposed both Dr. Rogers and Dr. Meyers. According to the record, at his deposition, Dr. Rogers reiterated his opinion that Claimant’s hernia was the result of her workplace injury. Dr. Rogers also testified that Claimant would have reasonably been off work for six weeks following surgery and clarified that he never suggested to Wal-Mart that Claimant should have only been off one week to recover.

There is no dispute that, despite the clear opinion repeatedly articulated by Dr. Rogers in October and November of 2002, Wal-Mart did not make a settlement offer until exactly one month before the hearing the following year, and even then, ignored the opinion of its own medical examiner and offered only: “5% of the body as a whole, one week of TTD ... and payment of the medical bills related to ... hernia repair[.]”

Equally outrageous, at the beginning of the May 22, 2003 hearing, Wal-Mart conceded, for the first time, that the injury occurred in the scope and course of Claimant’s employment, the workplace injury caused Claimant’s hernia and Wal-Mart had notice of the workplace injury. Like the employer in Landman, at the hearing, Wal-Mart did not call witnesses or present any medical evidence to refute the past medical bills or periods of disability and instead pointed only to alleged discrepancies in the medical records. The St. Joseph Hospital medical records do not provide Wal-Mart with a reasonable basis for denying that Claimant’s hernia was work-related, particularly after December 26, 2001. See Landman, 107 S.W.3d at 250.

In view of the foregoing, the ALJ’s findings do not support the denial of costs and fees in the final Award because the record does not support the conclusion that Wal-Mart had reasonable grounds upon which to defend the claim once it received Dr. Meyers’s December 26, 2001 report. Certainly waiting almost one full year before having Wal-Mart’s own medical expert examine Claimant, and once that examination was completed: ignoring its own physician’s. conclusions that Wal-Mart was liable; waiting an additional month only to urge its physician to reconsider his un-equivoeal-albeit unfavorable-opinion; forcing the claim to hearing even when faced with the reaffirmed conclusion of liability from its own expert only to admit knowledge, causation and liability after Claimant incurred the costs of preparation is the very egregious and outrageous conduct contemplated by the Court in Landman.

A logical corollary to the Court’s determination in Landman that-the Commission cannot ignore an unreasonable aspect of an employer’s defense simply because of the “overall vigor with which a party defended a claim” is that we cannot ignore years of protracted litigation based on a proven groundless defense simply because the defense at one time had arguable merit. See Landman, 107 S.W.3d at 250. The mere fact that, prior to December 26, 2001, the issue of causation was arguably in question does not absolve Wal-Mart of its later conduct.

We are mindful that, “[wjhere the unreasonable conduct is tempered by reasonable conduct in other aspects of the defense, the remedy is not to simply deny all relief to the innocent party. Instead, the [Commission may exercise its discretion to order only a portion of the cost of the proceedings.” Landman, 107 S.W.3d at 250. Accordingly, in light of the fact that Wal-Mart’s conduct prior to its receipt of Dr. Meyers’s December 26, 2001 report was arguably reasonable, we reverse the Commission’s Award denying costs and attorney’s fees from December 26, 2001 forward. We remand to the Commission with the instructions to determine the costs and attorney’s fees incurred by the Claimant after December 26, 2001 and to award the amount thereof to Claimant.

Conclusion

The Commission’s Award denying Claimant’s request for costs, attorney’s fees and interest is reversed and remanded.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ., Concur.

      . All further statutory references are to RSMo 2000, unless otherwise noted.

      . In addition to the unsuccessful mediation on April 18, 2002, the parties mediated, unsuccessfully, on August 12, 2002, November 18, 2002, December 16, 2002 and March 10, 2003.

      . Wal-Mart neither negotiated nor offered settlement until April 22, 2003, one month before the' scheduled hearing.

      . Where, as here, the Commission affirms and adopts the ALJ’s findings, the Court reviews the ALJ’s findings as adopted by the Commission. Sutton v. Vee Jay Cement Contracting Co., 37 S.W.3d 803, 807 (Mo.App. E.D.2000) (overruled on other grounds by Hampton, supra).

      . The Claimant did execute a "Conditions of Admission Agreement” certifying her understanding of various conditions of admission to the hospital including, among other things, a consent to admission and agreement to pay charges incurred for care.

      . The first two unsuccessful mediations occurred on April 18, 2002 and August 12, 2002 but the record indicates that it was not until August 22, 2002 that Wal-Mart drafted correspondence informing Claimant's counsel of a September 9, 2002 appointment with its examiner.