text:
    In the Interest of H.B. and H.D., Roxie Fausnaught, Appellant, v. The Newton County Juvenile Office, Respondent.
    Nos. 26446, 26449.
    Missouri Court of Appeals, Southern District, Division One.
    June 29, 2005.

      Appellant, pro se.
    No Appearance for Respondent.
    Before GARRISON, P.J., PREWITT, J„ and RAHMEYER, J.
   PER CURIAM.

Roxie Fausnaught (“Appellant”), maternal grandmother of H.B. and H.D., filed a motion to intervene in cases pending in the Circuit Court of Newton County in which her four grandchildren were placed in foster care after a protective custody hearing was held on April 22, 2004, due to an emergency removal by the Division of Family Services (“DFS”) on April 9, 2004. Her motion to intervene was denied and she now appeals the denial pro se. We have consolidated the two appeals.

The record is devoid of any evidence regarding the type of case from which Appellant appeals. While the record reveals that her four grandchildren were taken from her daughter and placed in protective custody, the legal file provides no indication as to whether or not Appellant would have a right to intervene. Appellant only requested a legal file from the trial court from April 9, 2004, until the date her appeal was filed. Nothing in the docket sheet guides us to understand the issues in the case Appellant appeals. Further, the notice of appeal only provides that this was a juvenile case where the judge ruled that the natural grandparent could not intervene.

It is necessary that we address obvious deficiencies in Appellant’s brief. Both attorneys and pro se appellants are held to the same procedural rules, thus pro se appellants do not receive preferential treatment regarding compliance with these rules. Hardin v. State, 51 S.W.3d 129, 130 (Mo.App. W.D.2001). Due to multiple violations of the Rules of Civil Procedure in Appellant’s brief, we dismiss the appeal.

In this case, Appellant did not submit a complete record on appeal. A trial transcript must be submitted as part of the record on appeal in order for this Court to make a determination of the issues raised. State v. Logan, 46 S.W.3d 590, 591 (Mo.App. E.D.2001); Rule 81.12(a). Appellant admits in her brief that she did not file a transcript, saying “Appellant also was unable to purchase a trial transcript thanks to Judge Selby’s refusal to allow Appellant’s lawful in for-ma pauperis status.” Rule 81.12(a) states:

The record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision.

The docket sheet stated that the trial court denied Appellant’s motion to intervene because “[ijntervener [sic] resides with alleged perpetrator[.]” We cannot begin to determine whether this ruling was erroneous without a complete record. It is the Appellant’s responsibility to provide all documents in the record necessary to decide the issues. Rule 81.12(c). Without this information, we are unable to determine whether the trial court erred, thus leaving nothing for this Court to review. Id.

In addition, a violation of Rule 84.04 is grounds for us to dismiss an appeal. Stickley v. Auto Credit, Inc., 53 S.W.3d 560, 562 (Mo.App. W.D.2001). Here, Appellant’s points relied on fail to comply with the requirements of Rule 84.04. The nine points relied on in Appellant’s brief state:

1. The trial court erred in dismissing Appellant’s Motion to Intervene by unlawfully claiming that since Appellant ‘lived with alleged perpetrator’ prior to the scheduled Adjudication Hearing, that the trial court was proceeding on the basis of that which hadn’t been proven, thus making a judgment ex parte on that which hadn’t been proven yet, but in addition allowing the violation of RSMo 210.183 requiring the Newton County Juvenile Office and Children’s Division investigators to provide a written description of the investigation process. Also lacking was any attempt to complete the investigation within 30 days or a ninety day report with the results according to the dictates of Revised Statute of Missouri (RSMo) § 210.183. Therefore, there being no lawfully accused ‘alleged perpetrator,’ Appellant couldn’t have her motion to intervene lawfully denied on that basis by the Newton County Juvenile Division trial court.
2. The trial court erred in dismissing Appellant’s Motion to Intervene by unlawfully claiming that since Appellant “states purpose was for discover” that this was another reason for denying Appellant’s Motion To Intervene.
3. The trial court erred before dismissing Appellant’s Motion to Intervene unlawfully as proven by his conduct in having Appellant’s domestic partner falsely arrested on April 15, 2004, covering up with this false arrest by means of threatening Appellant with bogus and unlawful contempt of court charges, of allowing the Division III court clerks to tamper with the official records and refusing to release these records to legitimate parties to this action, and again threatening Appellant’s domestic partner with false arrest and contempt of court.
4. The trial court erred after having unlawfully destroyed Appellant’s Motion to Intervene, Judge Kevin Lee Selby denied Appellant’s right to file a Notice of Appeal in forma pauperis, without even bothering to ask Appellant her financial circumstances as being solely on a VA widow’s pension. Then, upon receipt of a letter from Appellant notifying the Newton County Juvenile Court that she could only afford to borrow from Appellant’s domestic partner the $70 docket fee for only two grandchildren, Judge Selby justified his refusal by claiming to know the circumstances behind Appellant’s lawyer, who Judge Sel-by had rendered worthless in representing her. Appellant also was unable to purchase a trial transcript thanks to Judge Selby’s refusal to allow Appellant’s lawful in forma pauperis status.
5. The trial court erred after dismissing Appellant’s Motion to Intervene unlawfully as proven by his conduct in refusing to initially sign a final judgment order, in allowing his court clerks to refuse to provide the legal files for Appellant’s Record on Appeal and in threatening Appellant’s domestic partner, Martin Lindstedt from helping Appellant with her appeal with false arrest and contempt of court for entering the Division III clerk’s office.
6. The trial court erred in appointing as guardian ad litem Attorney Anne Wells given that she had a conflict of interest in that she unlawfully as an appointed municipal judge had threatened to put into jail unless Appellants [sic] domestic partner Martin Lindstedt left an open public municipal court in Granby, Missouri on Sept. 10, 2003 and had falsely arrested and jailed Martin Lindstedt on Feb. 23, 2004 for ‘Disturbing a Judicial Proceeding’ when he argued with Attorney Wells over transferring four traffic tickets from Diamond, Missouri to Newton County for jury trial. While these false charges were dismissed, however, Attorney Wells should have revealed her conflict of interest and refused to be guardian ad litem given her past and present conflicts against Appellant’s domestic partner.
7.The trial court erred in allowing the Newton County Juvenile Office’s Assistant Prosecuting Attorney Bill Dobbs to prosecute this case on behalf of the Juvenile Office and Children’s Division of Social Services given that in the case of State of Missouri v. Luper M. Baldwin, CR400-2353FX, Attorney Bill Dobbs allowed Luper M. Baldwin, who confessed to molesting H.D., one of the children party to this case, to escape trial by jury based upon nothing more than the motion of Luper Baldwin’s public defender, Kathy Byrnes-Ales in favor of no punishment at all.
In addition, when Appellant’s domestic partner asked for a copy of this open record, Newton County Prosecuting Attorney Bill Dobbs tampered with the official record in an attempt to cover up for the public defender by refusing to release the Motion to Strike Trial Setting filed Nov. 29, 2001 and to cover up for the juvenile judge Don Killebrew’s signing that Motion. It is unlawful and immoral to on the one hand allow confessed child molesters who molested Appellant’s granddaughter to escape any punishment or even trial on the one hand, and then to allow Bill Dobbs to protect the Juvenile Officers and social workers from having to obey the law regarding giving lawful notice under Revised Statute of Missouri (RSMo) § 210.152.2 and Revised Statute of Missouri (RSMo) § 210.183 to Appellant’s domestic partner unlawfully accused of being an ‘alleged perpetrator.’ Attorney Bill Dobbs also has committed the Class A misdemeanor of tampering with a public record under RSMo § 575.110 by trying to suppress or conceal any public record, i.e., his crimes in collusion with the public defender in covering up State of Missouri v. Luper M. Baldwin, CR400-2353FX, in order to advance this present case against Appellant and the interests of her grandchildren.
8. Appellant submits that the trial court, the Newton County Division III Juvenile Court with Judge Kevin Lee Selby presiding, along with the Newton County Juvenile Office, its Juvenile Officers Pat Stuart, David Jones, Candi Butts, Cathy Gorham, its Prosecuting Attorney Bill Dobbs and the Newton County Children’s Division caseworkers Doug Baugh, Linda Rasmussen, Rocky Macy, and guardian ad litem Attorney Anne Wells haven’t made any ‘errors’ at all, but rather that they have conspired to steal Appellant’s grandchildren, destroy Appellant’s family and genetic future, and try to railroad Appellant’s domestic partner Martin Lindstedt into prison and have him murdered in prison, for no other reason than because they like to steal and destroy the families of the poor and their political enemies for their own political agenda and self-interest.
9. Appellant submits that the best interest of her grandchildren is also in the best interests of the state, given that no government nor its criminal court system can long endure a state of affairs wherein the government and its agents are seen kidnapping and buying and selling the children of its poor and political enemies.

Rule 84.04(d) sets the guidelines for an appellant regarding her points on appeal. It states:

(1) Where the appellate court reviews the decision of a trial court, each point shall:
(A) identify the trial court ruling or action that the appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: “The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error]."

Here, Appellant’s points relied on fail to comply with the requirements delineated in Rule 84.04(d). Appellant’s points do not identify the rule of law the trial court should have applied, nor do they specify the evidentiary basis supporting the application of the rule of law suggested. See Rule 84.04(d)(1). They also fail to set out the legal bases for reversal and explain in summary fashion why, in the context of the case, reversal is mandated on the legal grounds asserted. See Lemay v. Hardin, 108 S.W.3d 705, 709 (Mo.App. W.D.2003). “It is not sufficient to merely set out what the alleged errors are, as [Appellant] has done in this case, without stating why the ruling is erroneous.” Murphy v. Aetna Cas. & Sur. Co., 955 S.W.2d 949, 950 (Mo.App. S.D.1997). Further, Appellant’s points do not intelligibly identify the issues she is pursuing on appeal. Lastly, Appellant’s points relied on violate the proscription in Rule 84.04(d)(4) that “[ajbstract statements of law, standing alone, do not comply with this rule.” We cannot begin to interpret Appellant’s points as stated because we would be forced to act as an advocate for Appellant. “It is not the function of the appellate court to serve as advocate for any party to an appeal.” Shochet v. Allen, 987 S.W.2d 516, 518 (Mo.App. E.D.1999).

Second, Appellant’s statement of facts is insufficient. Rule 84.04(c) instructs that the “statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument.” (Emphasis added). The purpose of the statement of facts is to provide an immediate, accurate, complete and unbiased understanding of the facts. Kent v. Charlie Chicken, II, Inc., 972 S.W.2d 513, 515 (Mo.App. E.D.1998). In her statement of facts, Appellant argues that she was unable to remove her grandchildren from foster care. She claims it was “due to the unlawful intransigence of the Juvenile Court judge [sic] Kevin Lee Selby and his minions, Appellant’s attempt to Intervene and gain discovery were unlawfully negated by Judge Selby.” Appellant also states that “[a] relative made a hotline call falsely alleging that the place was dirty because she had the hopes of taking Amalie Baldwin’s two youngest children and getting on welfare with them in late 2001.” Appellant not only fails to provide an unbiased and concise statement of facts, she also includes facts seemingly irrelevant to the issues she is raising on appeal. See White v. Darrington, 91 S.W.3d 718, 722 (Mo.App. W.D.2002).

Rule 84.04(i) further instructs that the statement of facts is to include specific page references to the legal file or the transcript. Appellant provides a timeline of events that led to her grandchildren being placed in foster care, but fails to provide any specific page references to the record on appeal in her statement of facts. Violations of Rule 84.04(c) and Rule 84.04(i) constitute grounds for dismissal of an appeal. Kent, 972 S.W.2d at 515.

Further, Appellant’s argument fails to comply with Rule 84.04(e), which requires the argument section of the brief to include a concise statement of the applicable standard of review for each claim of error. See Faulkerson v. Norman, 77 S.W.3d 43, 45 (Mo.App. E.D.2002). In addition, “[a]n argument should show how the principles of law and the facts of the case interact.” Boyd v. Boyd, 134 S.W.3d 820, 824 (Mo.App. W.D.2004). While Appellant includes some citations to authority, such citations are misguided and are inapplicable to her claim of error. She cites one case for the proposition that a denial of a motion to intervene is appeal-able, however, her other citations to authority include statutes without any explanation as to how the law and the facts of her case interact. She does not explain how these cases support her contention that the trial court erred in denying her motion to intervene. See Patterson v. Waterman, 96 S.W.3d 177, 179 (Mo.App. S.D.2003). When an appellant does not cite relevant authority in support of her position, or explain its absence, we are justified in considering the point abandoned. Schubert v. Trailmobile Trailer, L.L.C., 111 S.W.3d 897, 906 (Mo.App. S.D.2003). “[A]llegations of error not briefed or not properly briefed shall not be considered in any civil appeal.” Rule 84.13(a).

Although we are acutely aware of the problems faced by pro se litigants, Appellant’s pro se status does not excuse her from her compliance with Rule 84.04. See Speer v. K & B Leather Co., 150 S.W.3d 387, 388 (Mo.App. S.D.2004). As a result of numerous violations in Appellant’s brief, nothing is preserved for our review. We dismiss the appeal.

      . Reference to rules are to Missouri Rules of civil Procedure (2004).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    F.A., Appellant, v. D.A., Respondent.
    No. WD 64255.
    Missouri Court of Appeals, Western District.
    June 30, 2005.
    Archer Franklin, Gallatine, MO, Appellant Acting Pro Se.
    Susan Kephart, St. Joseph, MO, for Respondent.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM.

Trial court granted respondent’s motion to modify child custody by granting her sole legal custody and limiting appellant’s rights of visitation. Affirmed. Rule 84.16(b).


author: PER CURIAM:

text:
    In the Matter of A.C.M.L., Plaintiff, J.W.B. and K.R.B., Respondents, v. K.M.L. (Natural Mother), Defendant, T.W.L. (Natural Father), Appellant.
    No. WD 64923.
    Missouri Court of Appeals, Western District.
    June 30, 2005.
    Joshua Fay, Macon, MO, for appellant.
    Elizabeth K. Magee, Columbia, MO, for respondents.
    Jill R. Creed, Macon, MO, for plaintiff.
    Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   ORDER

PER CURIAM:

T.W.L. appeals the trial court’s judgment terminating his parental rights on grounds of abandonment and permitting J.W.B. and K.R.B. to proceed with their adoption of A.C.M.L. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Appellant, v. Lee A. SIGGERS, Respondent.
    No. ED 84980.
    Missouri Court of Appeals, Eastern District, Division Two.
    June 30, 2005.
    Amanda R. Schehr, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Lee Siggers (“Defendant”) appeals from the trial court’s judgment entered in the Circuit Court of the City of St. Louis upon his conviction of one count of forcible rape, two counts of forcible sodomy and one count of kidnapping. In his appeal, Defendant contends that the trial court erred in overruling his Motion for Judgment of Acquittal because the evidence was insufficient to prove beyond a reasonable doubt that Defendant was guilty of kidnapping.

We have reviewed the briefs of the parties and the record on appeal and 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 precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

We affirm pursuant to Rule 30.25(b).


text:
    CAPE SPECIAL ROAD DISTRICT OF CAPE GIRARDEAU COUNTY, Plaintiff/Respondent, v. Stephen L. EARL and Rosemary R. Earl, Defendants/Appellants.
    No. ED 84340.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 30, 2005.
    Charles W. Bobinette, St. Louis, MO, for appellant.
    James F. Waltz, Cape Girardeau, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The defendants appeal the trial court’s judgment that found that certain real property was part of a public road under section 228.190 RSMo.2000. The trial court’s judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears and an opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed. Rule 84.16(b).


author: GEORGE W. DRAPER III, C.J.

text:
    Dewayne HUBERT, Appellant, v. James PURKETT, Superintendent of Eastern Reception Diagnostic and Correctional Center, Respondent.
    No. ED 85996.
    Missouri Court of Appeals, Eastern District, Division Five.
    June 30, 2005.
    Dewayne Hubert, Bonne Terre, MO, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Stephen D. Hawke, Jefferson City, MO, for respondent.
   GEORGE W. DRAPER III, C.J.

Dewayne Hubert (Appellant) appeals from a judgment denying his petition for writ of habeas corpus. The appeal is dismissed.

Appellant filed a petition for a writ of habeas corpus in the circuit court. The petition was denied and Appellant has appealed to this Court. In response, the State has filed a motion to dismiss the appeal, contending this Court has no jurisdiction of the appeal. Appellant has not filed a response to the motion.

Here, Appellant seeks 'to appeal from the circuit court’s judgment Mgnying his petition for writ of habeas corpus. An appeal does not lie from the denialvof a petition for habeas corpus. Blackmon v. Missouri Board of Probation and Parole, 97 S.W.3d 458 (Mo. banc 2003); McDermott v. State, 120 S.W.3d 261, 262 (Mo.App. E.D.2003). If we lack jurisdiction to entertain an appeal, then it should be dismissed. Fischer v. City of Washington, 55 S.W.3d 372, 377 (Mo.App. E.D.2001).

A petitioner’s remedy where a petition for writ of habeas corpus is denied is to file a new writ petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo.App. E.D.2003). Appellant has not filed a new writ petition.

The appeal is dismissed for lack of an appealable judgment.

LAWRENCE G. CRAHAN, J. and GLENN A. NORTON, J., concur.


text:
    Joseph Franklin MILES, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. ED 85315.
    Missouri Court of Appeals, Eastern District, Division Four.
    June 30, 2005.
    Joseph S. Rubin, Clayton, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl Caponegro Nield, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The driver, Joseph Miles, appeals from the trial court’s judgment upholding the Director of Revenue’s ten-year denial of his driving privileges under section 302.060(9) RSMo.2000. The trial court’s judgment is supported by substantial evidence and is not against the weight of the evidence. An opinion would have no prec-edential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed. Rule 84.16(b).


text:
    Willie J. HILLIARD, Appellant v. STATE of Missouri, Respondent.
    No. WD 64116.
    Missouri Court of Appeals, Western District.
    June 30, 2005.
    Mark A. Grothoff, Columbia, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.

      Before BRECKENRIDGE, P.J., LOWENSTEIN and HOWARD, JJ.
   ORDER

PER CURIAM.

Following a jury trial, Willie Hilliard was convicted of stealing, Section 570.030, and burglary in the second degree, Section 569.170. Hilliard appeals the denial of his Rule 29.15 motion for post-conviction relief, claiming ineffective assistance of counsel. Affirmed. Rule 84.16(b).

      . All statutory references are to RSMo. (2000) unless otherwise indicated.


author: JEFFREY W. BATES, Chief Judge.

text:
    Carol A. HAWTHORNE, Claimant-Respondent, v. LESTER E. COX MEDICAL CENTERS, Employer-Appellant.
    No. 26291.
    Missouri Court of Appeals, Southern District, Division Two.
    June 30, 2005.

      David F. Sullivan, Springfield, MO, for Appellant.
    William W. Francis, Jr., Springfield, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

Lester E. Cox Medical Centers (“Cox”) appeals from a final award of workers’ compensation benefits to Carol Hawthorne (“Hawthorne”). The Labor and Industrial Relations Commission (“Commission”) found Hawthorne had a permanent partial disability of 12.5% of the body as a whole based on an injury to her back and awarded her $18,736.88. On appeal, Cox claims the Commission erred by: (1) determining that Cox waived any objection based upon § 490.065 to the testimony of Hawthorne’s expert, Dr. Andrew Myers (“Dr. Myers”), by failing to raise this objection during Dr. Myers’ depositions or at the division hearing; (2) refusing to strike Dr. Myers’ deposition testimony or remand the case for further evidentiary proceedings because his testimony failed to meet the standards for admissibility required by § 490.065; (3) concluding that Hawthorne sustained a compensable disability because she failed to offer credible medical testimony that her work was a substantial factor in causing any such disability; and (4) concluding that Hawthorne sustained a permanent partial disability of 12.5% to the body as a whole because this finding was not supported by competent and substantial evidence on the whole record. Because all of these arguments lack merit, we affirm.

I. Statement of Facts and Procedural History

Hawthorne herniated a disk in her back in 1990. Her treatment included a rhizoto-my, injections into the nerves around the disk, physical therapy and work hardening therapy. After finishing her treatment in 1990, she gradually resumed her normal activities over time. Hawthorne attended school from 1991 to 1994 and began working again in 1995. She did not receive any further regular treatment by any doctor for her back injury.

In May 1998, Hawthorne began working for Cox as an admissions clerk. Her job was to assist in admitting outpatients who came to Cox for treatment. In the latter part of September 1998, Hawthorne began doing telephone pre-registrations for patients who needed future medical procedures performed at Cox. Hawthorne was moved downstairs into a small cubicle measuring about 3.5 feet square. She sat at a desk in front of a computer monitor with a telephone and a filing cabinet located to her left. The telephone list from which she made calls was located to the right of the computer monitor and keyboard. The work space was very cramped. Many old files and papers were stacked underneath the desk where Hawthorne sat. Because of the positioning of the file cabinet and the old files under the desk, Hawthorne could only turn about 45 degrees to the left or right unless she rolled her chair backwards out from under the desk. As Hawthorne made telephone calls from the chair with her legs under the desk, she was required to reach around, bend, stretch and twist back and forth as she read names from the list and wrote down pertinent information she obtained during the calls. She made between 25 and 60 calls during her eight-hour work day.

In the latter part of September or early October 1998, Hawthorne noticed that her back seemed like it was pinching a lot in the area of her hips, her low back was getting tight, and she was having pain in both legs that radiated down to her ankle. She first noticed these symptoms after she had been moved downstairs into her cubicle. These symptoms gradually got worse as the work week progressed and then improved during the weekends when she was off work.

Hawthorne went to see her family physician, Dr. Chase, about her symptoms. She received treatment from Dr. Chase and several other physicians for her back condition. Pursuant to Dr. Chase’s orders, Hawthorne was off work because of her back problems from October 20, 1998 through February 23, 1999. On the latter date, Hawthorne was fired by Cox.

In February 1999, Hawthorne saw Dr. Myers. He performed a physical examination of Hawthorne and examined many of her prior medical records. He was deposed by the parties in March 2001. At no point during Dr. Myers’ deposition did Cox assert § 490.065 as the basis for an objection to any question concerning the doctor’s opinions or conclusions.

The divisional hearing was held before an administrative law judge (“ALJ”) on April 8, 2002. Hawthorne and her husband testified on her behalf. The deposition of Dr. Myers, which was marked as Exhibit V, was one of the many exhibits offered into evidence by Hawthorne’s counsel. Exhibit V was admitted only after Cox stated that it had “no objection” to the exhibit. In Dr. Myers’ deposition, he testified that Hawthorne had a herniated lumbar disk at the L5-L6 level. He opined that Hawthorne’s injury was primarily a new one, although there may have been some aggravation of her pre-existing facet arthrosis. Dr. Myers also testified that Hawthorne’s injury was job-related because “sitting in a cubicle where she had the lower part of her torso in one position and the upper part of her torso twisted in an opposite position for a prolonged period of time gives you a perfect scenario for a typical disk herniation.” The type of work being performed by Hawthorne was a substantial factor in her herniation because the twisting she did at work exposed her to risk factors that would cause this sort of injury. Dr. Myers rated Hawthorne as having a permanent partial disability of 15% of the body as a whole.

At the division hearing, Cox adduced testimony from its examining physician, Dr. Norbert Belz. He had examined Hawthorne, reviewed many of her prior medical records and conducted a study of her workplace environment. Based on a review of Hawthorne’s magnetic resonance imaging films, Dr. Belz concluded that Hawthorne had a herniated disk at the L5 level. She suffered one herniation slightly to the left side of this disk in 1990 and another herniation slightly to the right side of this disk in 1998. During the time that Hawthorne worked at Cox, Dr. Belz acknowledged that “she did become more symptomatic.” In Dr. Belz’s opinion, however, Hawthorne’s 1998 disk herniation was not caused by her occupational exposures at work. Based on Hawthorne’s pre-existing history of intermittent left side radiculopathy, Dr. Belz rated Hawthorne as having a permanent partial disability of 10% of the body as a whole. Hawthorne did not reach maximum medical improvement until May 1999, at which point her disease had progressed to the point that Dr. Belz rated Hawthorne as having a 15% permanent partial disability of the body as a whole.

During Dr. Belz’s testimony, Cox announced that it intended to take a rebuttal deposition of Dr. Myers and offered a packet of authoritative articles it intended to use during the deposition. In response to this request, the ALJ stated, “I’ll just have to deal with it when I take up the deposition. I intend to admit the deposition by agreement, subject, however, to any appropriate objections made on a timely basis during the deposition. And they will be taken up as I review the evidence, as with all depositions that are admitted into evidence.” At the conclusion of the divisional hearing, the ALJ declared the record closed and ordered that Dr. Myers’ rebuttal deposition be filed by May 7, 2002.

Dr. Myers’ rebuttal deposition was taken on April 24, 2002. At no point during this rebuttal deposition did Cox object to any of Dr. Myers’ opinions or conclusions on the ground that they failed to comply with the requirements of § 490.065. The record was closed when Dr. Myers’ second deposition was filed on May 1, 2002. In this deposition, Dr. Myers reiterated his conclusion that Hawthorne suffered a herniated disk at the level of L5-L6 as a result of the accident and injury that occurred in October 1998. This 1998 herniation was a new condition, even though Hawthorne had previously experienced problems at the level above this. Dr. Myers testified to a reasonable degree of medical certainty that Hawthorne’s rotation and twisting on the job caused or contributed to cause this herniation. Dr. Myers’ “bottom line opinion was that this activity herniated this disk.”

On February 14, 2003, the ALJ entered an award in the amount of $18,736.88 in Hawthorne’s favor. The ALJ found that Hawthorne sustained a compensable injury beginning October 1, 1998 and that the injury to her back and body as a whole resulted in a 12.5% permanent partial disability.

In March 2003, Cox filed an application for review with the Commission. It affirmed and adopted the findings and conclusions of the ALJ on all but three issues: (1) whether Cox failed to timely object to Dr. Myers’ testimony based on § 490.065; (2) whether Hawthorne’s disability resulted from an accident or occupational disease; and (3) whether Cox could avoid liability based on the “three-month rule” found in § 287.067.7. These three issues were addressed in the Commission’s supplemental opinion and final award allowing compensation.

The first issue had not been presented to the ALJ and was not included in Cox’s application for review. The challenge to Dr. Myers’ testimony was apparently first raised in a brief Cox filed with the Commission. In the supplemental opinion, the Commission summarized Cox’s argument in this fashion:

[Cox] argues on appeal before this Commission that the Supreme Court enunciated a new principle of law [in State Board of Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. banc 2004) ] that governs the admissibility of Claimant’s expert witness’ testimony. It argues that the testimony of Dr. Myers should be stricken because his testimony does not qualify as expert testimony pursuant to section 490.065 RSMo.

The Commission rejected the argument on the ground that Cox waived any such objection to the admissibility of Dr. Myers’ testimony based on § 490.065:

After considering the arguments presented, we find [Cox] waived any objection to Dr. Myers’ testimony under section 490.065 RSMo by failing to object to his testimony at the deposition. [Cox’s] argument that it could not have objected to Dr. Myers’ testimony at the deposition because McDonagh had not been decided is disingenuous. First, the Court points out in its decision that this issue was decided in 1997 in Lasky v. Union Electric Co., 936 S.W.2d 797 (Mo.banc 1997). In Lasky, the Court emphasized twice that section 490.065 RSMo governs expert testimony. Section 490.065 RSMo was enacted in 1989; thus, it is not a new statute. Second, the Supreme Court issued its decision in McDonagh on December 23, 2003. [Cox] filed its brief with the Commission on June 27, 2003. In its brief, [Cox] extensively argued that the testimony of Dr. Myers should be stricken as viola-tive of section 490.065 RSMo, without the benefit of the Court’s ruling. If [Cox] was aware that it could argue section 490.065 RSMo was applicable in its brief without benefit of the Court’s opinion, it should have been equally aware to raise this objection during Dr. Myers’ depositions.Because [Cox] did not object during Dr. Myers’ depositions or at the hearing, it has waived its objection to Dr. Myers’ testimony on the basis of section 490.065 RSMo.

The second and third issues addressed by the Commission in its supplemental opinion were raised in Cox’s application for review. With respect to the second issue, the Commission decided Hawthorne’s injury was compensable whether it resulted from an accident or an occupational disease because Hawthorne’s work duties were a substantial factor in causing the condition. With respect to the third issue, the Commission modified the ALJ’s opinion. Like the ALJ, the Commission ruled that Cox could not avoid liability based on § 287.067.7; however, the Commission reached that conclusion because Cox presented no evidence concerning whether Hawthorne’s prior employment exposed her to repetitive motion or whether such exposure was a substantial contributing factor to her injury.

Cox has appealed from the Commission’s final award and presents for our determination the four issues summarized at the beginning of this opinion.

II. Standard of Review

“In this appeal from a final award by the" Commission, we review the findings and award of the Commission rather than those of the ALJ.” Birdsong v. Waste Management, 147 S.W.3d 132, 137 (Mo.App.2004); McDermott v. City of North-woods Police Dept., 103 S.W.3d 134, 137 (Mo.App.2002). Subject to the three exceptions discussed above, the Commission affirmed and adopted the findings and conclusions of the ALJ. Therefore, we review the ALJ’s findings and conclusions, as adopted by the Commission, on all other issues. See Sutton v. Vee Jay Cement Contracting Co., 37 S.W.3d 803, 807 (Mo.App.2000).

An appellate court “shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the award was procured by fraud; (3) That the facts found by the commission do not support the award; (4) That there was not sufficient competent evidence in the record to warrant the making of the award.” § 287.495.1. “Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). On appeal, “no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding.” § 287.495.1. Therefore, “we defer to the Commission on issues involving the credibility of witnesses and the weight to be given to their testimony.” Pavia v. Smithy's Supermarket, 118 S.W.3d 228, 234 (Mo.App.2003); Chatmon v. St. Charles County Ambulance Dist., 55 S.W.3d 451, 455-56 (Mo.App.2001).

Commission decisions that are interpretations or applications of law, on the other hand, are reviewed for correctness without deference to the Commission’s judgment. Orr v. City of Springfield, 118 S.W.3d 215, 217 (Mo.App.2003); Maxon v. Leggett & Platt, 9 S.W.3d 725, 729 (Mo.App.2000). We independently review questions of law. Johnson v. Denton Construction Co., 911 S.W.2d 286, 287 (Mo.banc 1995).

III. Discussion and Decision

In Cox’s first point, it argues the Commission erred in concluding that Cox waived any objections to Dr. Myers’ testimony based upon § 490.065 by failing to assert such objections during Dr. Myers’ two depositions or at the division hearing. Cox claims the Supreme Court’s decision in State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. banc 2003), “effected a change in the rules of evidence” so as to require the application of § 490.065 to all administrative proceedings that were pending on December 23, 2003 when McDonagh was handed down. Based on this premise, Cox then argues that its “objections” to Dr. Myers’ testimony were timely because they were made before the Commission issued its final award. Cox’s argument fails because the underlying premise is unsound.

As we interpret McDonagh, it did not effect any change in the law concerning either the proper standard or the basic principles that must be applied to determine the admissibility of expert testimony in administrative proceedings. To the contrary, the Supreme Court decided these issues by simply pointing out and reaffirming its own existing precedents.

The first issue addressed in McDonagh was the Board’s contention that the admission of expert testimony in Missouri is governed by the standard set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). The Supreme Court rejected this argument because it had previously held in Lasky v. Union Elec. Co., 936 S.W.2d 797, 802 (Mo. banc 1997), “that the standard for the admission of expert testimony in civil cases is that set forth in section 490.065.” McDonagh, 123 S.W.3d at 149. Thus, the Court did not announce any new principle of law when it held that § 490.065 governs the admission of expert testimony in civil cases.

The second issue addressed in McDo-nagh was the Board’s contention that § 490.065 did not apply because a contested administrative proceeding is not a civil action within the meaning of that statute. The Supreme Court rejected this argument because it had previously held in State ex rel. De Weese v. Morris, 359 Mo. 194, 221 S.W.2d 206, 209 (1949), that the fundamental rules of evidence do apply in administrative hearings. The Court’s holding in De Weese was reaffirmed in Missouri Church of Scientology v. State Tax Commission, 560 S.W.2d 837, 839 (Mo. banc 1977). Based on this longstanding precedent, the McDonagh court held that § 490.065 guides the admission of expert testimony in contested administrative proceedings. McDonagh, 123 S.W.3d at 154-55. In so holding, the Court broke no new ground; it simply relied on its own existing precedents to reach the self-evident conclusion that “[t]he standards for admission of expert testimony constitute ... a fundamental rule of evidence.” Id.

In sum, we reject Cox’s argument that it was not in a position to object to Dr. Myers’ testimony based on § 490.065 until McDonagh was decided. Therefore, Cox waived this objection by failing to make it during Dr. Myers’ depositions or at the hearing before the ALJ. See Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 209 (Mo. banc 1991) (a party waives an objection that is not timely made). Point I is denied.

In Cox’s second point, it argues that the Commission erred in refusing to strike the deposition testimony of Dr. Myers, or, alternatively, in refusing to remand the case for further evidentiary proceedings, because Dr. Myers’ testimony fails to satisfy the standards for admissibility required by § 490.065. The basis for Cox’s argument is that Hawthorne failed to introduce competent and substantial evidence of the facts and data upon which Dr. Myers based his opinions. Cox’s argument fails because no such objection was made during Dr. Myers’ depositions or at the hearing before the ALJ. Therefore, the Commission properly denied the request to strike Dr. Myers’ testimony or remand the case for further evidentiary development because this objection was waived. Seabaugh, 816 S.W.2d at 209; Dorman v. State Bd. of Registration for Healing Arts, 62 S.W.3d 446, 455 (Mo.App.2001). Point II is denied.

In Cox’s third point, it argues the Commission erred in concluding that Hawthorne sustained a compensable injury or disability because she failed to offer credible medical testimony that her work was a substantial factor in causing any such injury or disability. We disagree. In Dr. Myers’ testimony from his first deposition, he opined that Hawthorne had “a herniated lumbar disk at the L5-L6 level.” Dr. Myers then gave the following testimony concerning the cause of Hawthorne’s injury:

Q. [D]o you have an opinion as to whether her condition is job-related?
A. Yes, I do.
Q. What is that opinion?
A. My opinion is that it is work related, the work that she was doing at Cox Medical Center.
Q. Okay. And in what way is it work related?
A. Well, by the fact that she was sitting in a cubicle where she had the lower part of her torso in one position and the upper part of her torso twisted in an opposite position for a prolonged period of time gives you the perfect scenario for a typical disk herniation.
Q. Well, was this type of work she was doing then a substantial factor in her herniation?
[Objection by counsel omitted.]
A. It most certainly is a substantial factor.
Q. Will this particular, where she’s twisting and she’s in this situation, this kind of job activity, did it expose her to risk factors and elements that would cause this type of condition that she has?
A. Yes.

In Dr. Myers’ second deposition, he reiterated his conclusion that Hawthorne suffered from a herniated disk at the level of L5-L6 in 1998. This herniation was a new condition that occurred in October 1998, even though Hawthorne had previously experienced problems at the level above this. Dr. Myers testified to a reasonable degree of medical certainty that Hawthorne’s rotation and twisting on the job caused or contributed to cause this herniation. Dr. Myers’ “bottom line opinion was that this activity herniated this disk.” The Commission found the opinions of Dr. Myers to be credible. Therefore, Hawthorne did offer credible medical testimony that her work was a substantial factor in causing her herniated disk. Point III is denied.

In Cox’s fourth point, it claims the Commission’s finding that Hawthorne sustained a permanent partial disability of 12.5% to the body as a whole is not supported by competent and substantial evidence on the whole record. We disagree. The Commission is not bound by the experts’ exact percentages of disability and is free to find a disability rating higher or lower than that expressed in medical testimony. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 885 (Mo.App.2001). That is because a claimant’s “degree of disability is not solely a medical question.” Lytle v. T-Mac, Inc., 931 S.W.2d 496, 502 (Mo.App.1996). Determining a claimant’s specific percentage of disability “is a finding of fact within the unique province of the Commission.” Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 179 (Mo.App.1995). We 'will not substitute our judgment for that of the Commission, even if this court would have reached a different conclusion. Sifferman v. Sears, Roebuck and Co., 906 S.W.2d 823, 826 (Mo.App.1995).

Here, Dr. Myers rated Hawthorne as having a permanent partial disability of 15% of the body as a whole based on her work-related, 1998 disk herniation. Cox’s expert, Dr. Belz, opined that Hawthorne’s 1998 disk herniation was not caused by her occupational exposures at work. He rated Hawthorne as having a permanent partial disability of 10% of the body as a whole from her 1990 herniation, and her disease continued to progress until May 1999. At that point, Dr. Belz rated Hawthorne as having a 15% permanent partial disability of the body as a whole, none of which he attributed to Hawthorne’s employment. The ALJ found that Hawthorne suffered a permanent partial disability of 12.5% of the body as a whole as the direct result of her October 1998 injury, and the Commission adopted that finding.

It is up to the Commission to accept or reject medical evidence. Bowman v. Zenith Radio Corp., 895 S.W.2d 276, 280 (Mo.App.1995). It found Hawthorne had a degree of disability lower than the rating assigned by her expert, but higher than the rating assigned by Cox’s expert. Our independent review of the record leads us to conclude that the Commission’s finding concerning Hawthorne’s degree of disability is supported by competent and substantial evidence. The Commission’s assessment will not be disturbed “where the percentage of disability, as here, is hotly contested.” Landers v. Chrysler Corp., 963 S.W.2d 275, 284 (Mo.App.1997); see also Parker v. Mueller Pipeline, Inc., 807 S.W.2d 518, 522 (Mo.App.1991). Point IV is denied.

The Commission’s award is affirmed.

SHRUM and BARNEY, JJ„ Concur.

      . All references to statutes are to RSMo (2000).

      . Hawthorne’s Motion for Costs for Frivolous Appeal, which was ordered taken with the case, is denied.

      . We say "apparently” because Cox’s brief asserting this "objection” was not included in the record on appeal. Therefore, our only information concerning the specific grounds of Cox’s so-called objection and the relief it sought below comes from the Commission’s supplemental opinion.


text:
    Kevin Adrain WILLIAMS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64324.
    Missouri Court of Appeals, Western District.
    July 5, 2005.
    Sarah W. Patel, Kansas City, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before: EDWIN H. SMITH, C.J., ROBERT G. ULRICH and JAMES M. SMART, JR., JJ.
   ORDER

PER CURIAM.

Kevin Williams appeals the denial of his motion for post-conviction relief pursuant to Rule 29.15. In his sole point on appeal, Mr. Williams contends that he was denied effective assistance of trial counsel when his counsel failed to move to suppress statements allegedly procured through a promise of leniency.

The judgment is affirmed. Rule 84.16(b).


text:
    David FITZPATRICK, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64187.
    Missouri Court of Appeals, Western District.
    July 5, 2005.
    Ruth Sanders, Kansas City, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before EDWIN H. SMITH, C.J., ROBERT G. ULRICH and JAMES M. SMART, JR., JJ.
   ORDER

PER CURIAM.

David Fitzpatrick appeals the denial of his motion for post-conviction relief pursuant to Rule 29.15. In his sole point on appeal, Mr. Fitzpatrick contends that he was denied effective assistance of counsel when his trial counsel failed to depose two witnesses before trial.

The judgment is affirmed. Rule 84.16(b).


text:
    Gayl A. DEILMAN, Appellant, v. BPA COMPANY, L.L.C., Respondent.
    No. WD 64127.
    Missouri Court of Appeals, Western District.
    July 5, 2005.
    Stephen C. Caruso, Kansas City, MO, for appellant.
    Michael P. Waddell, Kansas City, MO, for respondent.
    Before ROBERT G. ULRICH, Presiding Judge, JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM:

Gayl A. Deilman appeals the circuit court’s summary judgment in favor of BPA Company, L.L.C., on her premises liability action against BPA, arguing that the circuit court erred in granting summary judgment to BPA because there were genuine issues of material fact which precluded such a disposition. The judgment of the circuit court is affirmed. Rule 84.16(b).


author: ROBERT S. BARNEY, Judge. KENNETH W. SHRUM,

text:
    STATE of Missouri, Respondent, v. Bobby Eugene CARROLL, Defendant, and A-Advanced Bail Bonds, Appellant.
    No. 26438.
    Missouri Court of Appeals, Southern District, Division Two.
    July 6, 2005.

      Richard L. Schnake, Neale <& Newman, L.L.P., Springfield, for appellant.
    Jessica D. Burns, Bolivar, for respondent.
   ROBERT S. BARNEY, Judge.

Appellant A-Advaneed Bail Bonds (“Appellant”) posted a $5,000.00 surety bond to secure defendant Bobby Eugene Carroll’s (“Carroll”) presence in court. Appellant now appeals from a judgment of the trial court requiring Appellant to reimburse Respondent State of Missouri (“the State”) for expenses the State and Polk County, Missouri, incurred in returning Carroll to Missouri from a location in Georgia, where he had been incarcerated. In its sole point on appeal, Appellant maintains the State did not accord Appellant the “first opportunity,” pursuant to section 374.770.2, to return Carroll to Missouri. Accordingly, Appellant asserts the trial court erred in entering a judgment of $2,988.59 against Appellant and seeks reversal of the judgment.

The record reveals that on June 25, 2002, Carroll was arrested and charged with two felonies in Polk County, Missouri. Appellant posted a $5,000.00 surety bond for Carroll and Carroll was released on bail. Carroll entered pleas of not guilty to both charges and a trial was set for November 4, 2002; however, Carroll failed to appear for trial on that date. As a result, a capias warrant was issued for his arrest; his bond was raised to $10,000.00; and his trial was re-scheduled for December 9, 2002. Carroll failed to appear for his December 9, 2002, trial date. The trial court noted in its docket entry that “no action [was] taken.”

Thereafter, Appellant, through its agent Scott Otto (“Otto”), learned that Carroll had been arrested on October 16, 2002, in Valdosta, Georgia, on drug charges and was still in custody at that location. Otto notified Polk County Sheriff Michael Parson (“the Sheriff’) of Carroll’s incarceration. As Otto was having trouble obtaining information about Carroll’s arrest from Georgia authorities, Otto asked the Sheriff to request information on Carroll from the Lowndes County Detention Center in Georgia. As a result, the Georgia authorities faxed information regarding the charges against Carroll to the Polk County Sheriffs Department. Otto requested permission from the Sheriff to pick up Carroll in Georgia, but the Sheriff told Otto that it was his department’s obligation to do so.

On May 5, 2003, Appellant filed a motion for release from bond, which requested it be discharged from its surety bond on Carroll. Appellant also requested “that the Sheriff of Polk County, Missouri, enter into the [National Crime Information Center (“N.C.I.C.”) ] system the fact that there is a warrant outstanding for the arrest of [Carroll] ... so that when [Carroll] is released by the ... Georgia, authorities there will be a hold placed upon him.” At the May 12, 2003, hearing on the motion, the trial court’s docket entry re-fleets that the trial court ordered the “Sheriff ... to place the warrant in this case into the [N.C.I.C.] system,” but there is no indication in the docket sheet regarding whether the trial court ruled on Appellant’s motion for release from bond. The Sheriff complied with the trial court’s order.

At some point in time thereafter, Georgia authorities notified the Sheriff that Carroll “had cleared his charges in the State of Georgia, and that [the Sheriffs department] had 10 days to pick [Carroll] up ...” or he was going to be released. The Sheriff then notified the trial court that Carroll was in custody in Georgia. However, neither the trial court nor the Sheriff notified Appellant of Carroll's possible release.

Within a week of being notified that Carroll was ready to be transported back to Missouri, the Sheriff sent two deputies to Georgia to retrieve Carroll and return him to Polk County, Missouri. Carroll was subsequently returned to Polk County by the two deputies.

On June 6, 2003, the Sheriff sent a letter to the trial court informing it that the Sheriffs department had expended $2,988.59 in county funds to return Carroll to Polk County. Three days later, Carroll appeared before the trial court and the trial court set the matter for July 14, 2003, in order to attend to “trial setting and bond issues.” Carroll subsequently pleaded guilty to the charges against him and was sentenced by the trial court to a term of imprisonment.

On July 24, 2003, the State filed a motion for forfeiture of bond and immediate judgment of default and execution, followed on October 1, 2003, by the State’s motion requesting reimbursement for the $2,988.59 the Sheriff had expended in retrieving Carroll from Georgia. At the hearing on the motions, the trial court overruled the State’s motion to forfeit the bond, but granted its request for a judgment against Appellant in the amount of $2,988.59 and found that Appellant was “responsible for all costs incurred by the State of Missouri and the Polk County Sheriffs Department for the return of [Carroll] from the State of Georgia.”

Thereafter, Appellant filed a “Motion to Vacate Judgment, Alternative Motion to Amend Judgment, and an Alternative Motion for New Trial.” Subsequently, a hearing was held on June 1, 2004, where the Sheriff testified that once he was notified by the Georgia officials that Carroll was being released, he did not advise Appellant of that fact. He stated that he was unsure if the Georgia officials notified anyone other than his office of Carroll’s impending release, and that he was unaware if Appellant had been notified in any other manner. In explaining his decision to not notify Appellant, the Sheriff explained that he did not “believe that’s the Polk County sheriffs office obligation to do that....” He went on to state that “at the point where [he] was court ordered to pick the prisoner up [after the filing of the detainer with N.C.I.C.], it was [the Sheriffs] obligation to go pick him up and bring him back.” Additionally, the Sheriff maintained that Appellant “actually was the one who told [him] where [Carroll] was at, that [Appellant] knew [Carroll] was in custody” and the Sheriff thought Appellant had an “opportunity to pick him up.” According to the Sheriff, it was his “understanding ... that [Appellant] could have been in Georgia sitting there, for a better term, outside [the jail] waiting for [Carroll] to be released and picked him up if they had desired.” The Sheriff also set out that “would have been the very first opportunity [for Appellant] to obtain [Carroll’s] custody....” The Sheriff also testified that even if he had informed Appellant that Carroll was being released, Appellant would not have qualified to return him from Georgia, because under Georgia law only an appointed “agent of the state,” such as a Sheriffs deputy, could have retrieved Carroll.

Otto testified that he notified the Sheriff of Carroll’s whereabouts because he was required to do so by section 374.770 in order to prevent forfeiture of Carroll’s bond. See State v. Siemens, 12 S.W.3d 776, 781 (Mo.App.2000). Otto stated that it was important that the Sheriff enter Carroll’s failure to appear warrant into the N.C.I.C. system, because “upon the disposition of [Carroll’s] Georgia charges, he would have walked out of their jail basically a free man with no holds on him in Missouri.” Otto said that the specific reason he pushed to have the warrant placed in the N.C.I.C. system was so that Appellant could learn when Garroll was going to be released and he could then have been brought back to Missouri by Appellant.

Otto responded to the Sheriffs assertions that Appellant could have gone down to Georgia and camped out at the jail until Carroll was released, by describing how costly and time consuming such measures would have been for Appellant, given that his company had no idea as to when or if Carroll would be released. Otto testified that had Appellant been notified of Carroll’s impending release, he would have obtained a trial court order appointing him as an “agent of the state” so that he could have retrieved Carroll in compliance with the laws of the State of Georgia. According to Otto, he had been appointed as an “agent of the state” on numerous, other occasions for the specific purpose of journeying out of state to bring back a defendant prisoner.

Following the hearing, the trial court again ruled in favor of the State. In its judgment entered on July 6, 2004, the trial court specifically found that Appellant “knew exactly where [Carroll] was incarcerated and caused this Court to order a warrant for [Carroll] be placed in N.C.I.C.” and that “said warrant created (at the insistence and motion of the surety) a detainer against [Carroll]” in Georgia. The trial court went on to set out that:

under Section 17-13-46 GA Code 2002 [] that the Georgia officials could then only release [Carroll] to ‘agents of the demanding state;’ that at no time was [Appellant] or its employees] an ‘agent’ of the State of Missouri, nor did they seek appointment from this Court as an ‘agent’ of the State of Missouri. The Court specifically finds that the Georgia officials were prohibited from releasing [Carroll] to [Appellant] and that there was no ‘first opportunity to return such Defendant’ to the Circuit Court of Polk County, Missouri as set forth in Section 374.770.2 R.S.Mo. as [Appellant] did not qualify, nor seek to qualify as an agent of the demanding state (Missouri).... As opposed to not having a detainer placed on [Carroll], and going and staking out the Valdosta jail to pick up [Carroll] when he was released from the Georgia charges ... [Appellant] opted in writing by its motion filed in this Court to seek such a detainer. [Appellant] cannot now complain when they received exactly what they asked for.

The trial court concluded by stating that “[t]he remainder of said statutory section [374.770.2], however does apply” to the matter and entered a judgment against Appellant for $2,988.59. This appeal followed.

As previously set out, in its sole point on appeal, Appellant maintains the trial court erred in entering judgment against it “because the State did not give [Appellant] the first opportunity to return Carroll itself as § 374.770.2 requires, in that the [S]heriff, who was the only party with knowledge, failed to notify [Appellant] that the Georgia authorities were ready for Missouri to pick up Carroll....” (Emphasis added). According to Appellant, had the Sheriff advised Appellant that Carroll was ready to be extradited back to Missouri, Appellant’s agents would have promptly gone to Georgia and brought the prisoner back, thereby preventing the Sheriffs office from having to expend $2,988.59 to return Carroll to Missouri.

As is evident, the key issue on appeal is the statutory interpretation of the phrase in sub-section 2 of section 374.770 which provides “the bail bond agent or general bail bond agent shall have the first opportunity to return such defendant to the proper court....” § 374.770.2 (emphasis added).

Under our standard of review, the “judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “Appellate courts should exercise the power to set aside a ... judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Id. “ “We accept' as true the evidence and inferences therefrom that support the trial court’s judgment and disregard contrary evidence.’ ” Vaughn v. Willard, 37 S.W.3d 413, 415 (Mo.App.2001) (quoting Rone v. Reeves, 20 S.W.3d 526, 527 (Mo.App.2000)). “ ‘We keep in mind that a trial court is free to believe or disbelieve all, part, or none of the testimony of any witness.’ ” Id. (quoting Rone, 20 S.W.3d at 527).

Statutory construction is a question of law, not judicial discretion. Eckenrode v. Dir. of Revenue, 994 S.W.2d 583, 585 (Mo.App.1999). “The primary rule of statutory interpretation requires this Court to ascertain the intent of the legislature by considering the language used while giving the words used in the statute their plain and ordinary meaning.” Benoit v. Missouri Hwy. and Transp. Comm’n, 33 S.W.3d 663, 673 (Mo.App.2000). In addition, “we consider the statute in the context of the entire statutory scheme on the same subject in order to discern legislative intent.” Id. at 673-74. We must avoid statutory “interpretations that are unjust, absurd, or unreasonable.” Id. “Where the language of a statute is clear and unambiguous, we will give effect to the language as written and will not resort to statutory construction.” Hadel v. Board of Educ. of School Dist. of Springfield, R-12, 990 S.W.2d 107, 111 (Mo.App.1999).

“Under Section 374.700, if the surety can show at the time that the defendant first fails to appear that the surety’s failure to produce the defendant is due to the latter’s incarceration somewhere in the United States, then the court will not declare a bond forfeiture in the first instance, but the surety is liable for the return of the defendant.” Siemens, 12 S.W.3d at 781. Accordingly, in order to effectuate a surety’s responsibility to return an errant and incarcerated defendant to the State of Missouri, under circumstances as set out in section 374.770.1, the legislature has mandated that a surety, such as a “bail bond agent or general bail bond agent,” shall have “the first opportunity to return such defendant to the proper court.” § 374.770.2. Webster’s Dictionary defines “first” as meaning “[bjefore another in time, space or importance.” Merriam-Webster’s Collegiate Dictionary 472 (11th ed.2003). Opportunity is defined as “a favorable juncture of circumstances.” Merriam-Webster’s Collegiate Dictionary 870 (11th ed.2003).

Here, the record reveals that Appellant had previously informed the trial court that Carroll was incarcerated in the State of Georgia. While Appellant knew that Carroll was in jail in Georgia, it had no knowledge as to whether Carroll was going to serve prison time, was going to be extradited, or even when he was going to be released. The trial court’s finding that Appellant could have stationed its employ-' ee outside of the Valdosta County Jail in Georgia for some indeterminable period of time is unreasonable under the circumstances, because upon being informed by Georgia authorities of Carroll’s impending release, a single phone call from the Sheriff could have alerted Appellant that Carroll was going to be released on a particular date. The Sheriff admitted that he did not make such an overture to Appellant.

Second, Otto testified that had he known he had ten days to retrieve Carroll he would gladly have obtained a trial court order making him an agent of the state so as to comply with Georgia law, however, he had no such notice.

Lastly, we note that nowhere in section 374.770 is there a requirement that a bonding agent be appointed “an agent of the state” prior to exercising its first opportunity to return an out-of-state incarcerated defendant to Missouri. Furthermore, this Court can conceive of certain circumstances in which a trial court would not accord a bonding agent the designation of “agent of the state” for a variety of reasons, including issues related to liability. Additionally, we can envision a situation in which a bonding agent might very well request that the sheriff or other law enforcement authorities return a defendant to the State rather than forfeit its bond.

This Court finds that given the particular facts and circumstances of this case Appellant was not accorded “the first opportunity to return” Carroll to Polk County, as required by section 374.770.2. Appellant should have been informed by the Sheriff (or the trial court) of the impending release of Carroll by Georgia authorities, in sufficient time for Appellant to have sought the designation of “agent of the state” for purposes of complying with Georgia law. However, Appellant was not so informed.

The trial court’s determination that “[A]ppellant never sought to be appointed an agent for the State of Missouri to pick up [Carroll] from the Georgia authorities ...” was contrary to the mandate of section 374.770.2 and, therefore, Appellant was not given the “first opportunity” to return Carroll to Missouri.

With that being said, Appellant should not be permitted to escape all financial liability in this matter. Had Appellant been given the “first opportunity” to return Carroll to Missouri, Appellant would have had travel expenses of its own. Terry Marshall (“Marshall”), a bonding agent for Appellant, testified that if his company had journeyed to Georgia to retrieve Carroll they would have done so for a considerably smaller amount than that expended by the State. Specifically, Marshall related that if they had gone via private vehicle the amount would have been $411.50, and had the company utilized its private plane the amount would have been $584.40. Given the time constraints imposed by the impending release of Carroll by Georgia authorities it is reasonable to conclude that in order for Appellant to have expeditiously retrieved Carroll from the state authorities in Georgia that Appellant would have had its agent or agents use a private airplane for this purpose. Accordingly, Appellant should be liable to the State for $584.40.

Rule 84.14 allows this Court to “give such judgment as the court ought to give” and instructs that “[ujnless justice otherwise requires, the [appellate] court shall dispose finally of the case.” Although the trial court here erred in awarding the State the amount of $2,988.59, this Court can render judgment that should have been rendered by the trial court in lieu of remanding the error for correction. Rule 84.14. We can make such judgments “when the record and evidence give us confidence in the reasonableness, fairness, and accuracy of the conclusion reached.” LaRocca v. LaRocca, 135 S.W.3d 522, 526 (Mo.App.2004). Accordingly, the award in favor of the State and against Appellant in the sum of $2,988.59 is reversed and the matter is remanded to the trial court for entry of a judgment awarding $584.40 to the State.

SHRUM, J., and BATES, C.J., concur.

KENNETH W. SHRUM,

dissenting.

I respectfully dissent. I do so despite my agreement with the majority that a simple telephone call by the Sheriff to Appellant might have prevented this protracted litigation over an amount of money less than $3000.

I dissent because Appellant did virtually nothing to take advantage of the “first opportunity to return” it was given via section 374.770.2. I cannot agree that Appellant should be rewarded for its inaction. To the contrary, the policy underlying Missouri’s bail bond law supports the notion that Appellant should pay for Carroll’s return since Appellant made no effort to return Carroll other than (1) locate Carroll, (2) notify law enforcement officials of Carroll’s whereabouts; and (3) force the Sheriff to enter Carroll’s name into the NCIC database. In my view, these minimal steps did not entitle Appellant to simply wait to be notified by some sheriff or other judicial officer of Carroll’s impending release and, when such voluntary notice was not given, successfully defend a motion for costs on the grounds that, the lack of notice of Carroll’s release date deprived it of the “first opportunity to return.”

The bail bond policy to which I refer is stated in State v. Hinojosa, 364 Mo. 1039, 271 S.W.2d 522 (1954), thusly:

“Recognizances are not taken to enrich the treasury. They rest in humanity to an accused, and their obvious and main purpose is the enforcement of the criminal laws that defendant appear for trial or sentence. Good faith is not involved. Sureties know and solemnly contract that the defendant shall appear and abide the orders of the court and in the event of his default are bound by their obligation. Recognizances are not idle forms. If sureties, who have it in their power to insure compliance by a defendant, may be relieved because they make diligent effort for his arrest as a fugitive there exists little inducement for diligence on their part in the first instance to prevent his escape. To exonerate sureties for such reason would seriously impede the declared public policy of the State for the prevention and punishment of crime. It is more important that an accused be forthcoming for trial and of greater importance that he be forthcoming for sentence than that the expense of keeping him in prison be avoided. A lax administration of laws for the prevention or punishment of crime is not for the best interests of society and is not justified.”

Id. at 524[3, 4].

I recognize Hinojosa predated section 374.770, the latter having been enacted in 1983. The changes wrought by section 374.770, however, were limited and only altered Missouri’s bail bond law as follows.

First, section 374.770 enables a surety to avoid an automatic bond forfeiture or set aside a bond forfeiture if the surety proves the principal’s non-appearance was caused by his or her incarceration somewhere in the United States and the surety “informs the court” about such incarceration before judgment is entered on the forfeiture order. See State v. Goodrich, 12 S.W.3d 770 (Mo.App.2000); State v. Siemens, 12 S.W.3d 776 (Mo.App.2000).

Second, section 374.770.2 provides:

“In all instances in which a bail bond agent ... has given his bond for bail for any defendant who has absented himself in violation of the condition of such bond, the bail bond agent ... shall have the first opportunity to return such defendant to the proper court. If he is unable to return such defendant, the state of Missouri shall return such defendant to the proper court for prosecution, and all costs incurred by the state in so returning a defendant may be levied against the bail bond agent ... in question.” (Emphasis supplied.)

Except for the relief afforded sureties via section 374.770.1 and except for the “first opportunity” language in section 874.770.2, the 1983 statute did not alter the bail bond law or policy in Missouri. As such, what was said in Hinojosa has applicability here, namely, “lax administration of the laws for the prevention or punishment of crime is not for the best interests of society and is not justified.” Id. at 524[4]. Equally apropos is this from State v. Tennyson, 537 S.W.2d 858, 860 (Mo.App.1976): “[Tjhere would be little incentive for sureties to keep the principal from escaping if sureties could be excused on a showing of diligence in attempting to have the principal returned.” Certainly, there would be little incentive for sureties to take advantage of their first opportunity to return if they could avoid the expense of returning by simply letting the sheriff know where the principal is and then getting the principal’s name entered into the NCIC database.

Relying on the principles espoused by Hinojosa and Tennyson, I hold the view that, at a minimum, the “first opportunity to return” provision in section 374.770.2 should be interpreted to require sureties, such as Appellant, to do everything in their power to secure the return of the principal (here, Carroll) before they can successfully use a claim of a lack of “first opportunity” to avoid paying for the return of their principal. I find support for this view in cases such as State v. Foster, 512 S.W.2d 448 (Mo.App.1974). Although Foster also predates section 374.770, it shows, by analogy, the effort that should be required of a surety before it can be relieved of retrieval expenses on the basis it was denied the first opportunity to return.

In Foster, the surety did everything in its power to produce the principal in court; the only remaining act to accomplish that purpose was for the state of Missouri to transport the accused. When the state failed to act, the court forfeited the bond. The appellate court reversed the forfeiture judgment, holding that when “a surety has taken every step possible in making the defendant available to the jurisdiction of the State of Missouri,” a bond should not be forfeited when those actions are thwarted by the state’s actions or inactions. Id. at 451. Here, however, Appellant failed to do anything, other than locating Carroll, notifying the Sheriff and the court of his whereabouts, asking the court to issue an order mandating that the Sheriff enter Carroll’s name into the NCIC database, and waiting for the Sheriff to supply additional information.

Appellant seems to argue that it actually did everything in its power to return Carroll to Missouri and that it was merely waiting on the Sheriff to notify it that Carroll was ready to be transported to Missouri upon release by the Georgia authorities. I find this argument without merit.

First, Appellant ignores the fundamental policy of Missouri vis-a-vis bail bonds. As aptly stated by one court:

[The surety’s] obligation goes not merely to bringing a defendant back from another jurisdiction, but to preventing the defendant’s initial departure .... [A] surety not only has the right to prevent a defendant from leaving the state, it has an obligation, under peril of financial loss ‘to keep a watch over the accused.’ When it fails to do so and the result is not only departure but incarceration in another jurisdiction, the protest that the state discouraged return in some way can only be viewed as an excuse for the surety’s own failure to remedy its initial and primary error in not keeping a watchful eye.”

State v. Gray, 658 S.W.2d 41, 43-44[5] (Mo.App.1983) (citations omitted) (emphasis supplied).

Second, I find no statutory support for the notion that the Sheriff had a duty to notify Appellant. Section 347.770.1 plainly states “the surety is responsible for the return of the defendant.” The statute continues by stating the surety shall have the first opportunity to return the defendant. I find no requirement in the statute that the Sheriff must cooperate with the surety. The only thing the surety is entitled to under the statute is a “hold order” and the “first opportunity” to return the absent defendant. § 374.770.1-2. To add the requirement that the Sheriff must aid the surety in exercising its first opportunity of return, “would be putting something in the statute that the legislature did not.” State v. Cummings, 724 S.W.2d 316, 318 (Mo.App.1987). This we should not do.

Because Appellant did not exercise due diligence and take every possible step to procure Carroll’s presence before the court, I would hold that Appellant is liable for the costs of transporting him to Missouri. I would affirm the judgment of the trial court.

      . Section 374.770 states:
      1. If there is a breach of the contract of the bond, the court in which the case is pending shall declare a bond forfeiture, unless the surely upon such bond informs the court that the defendant is incarcerated somewhere within the United States. If forfeiture is not ordered because the defendant is incarcerated somewhere within the United States, the surety is responsible for the return of the defendant. If bond forfeiture is ordered and the surety can subsequently prove the defendant is incarcerated somewhere within the United States, then the bond forfeiture shall be set aside and the surety be responsible for the return of the defendant. When the surety notifies the court of the whereabouts of the defendant, a hold order shall be placed by the court having jurisdiction on the defendant in the state in which the defendant is being held.
      2. In all instances in which a bail bond agent or general bail bond agent duly licensed by sections 374.700 to 374.775 has given his bond for bail for any defendant who has absented himself in violation of the condition of such bond, the bail bond agent or general bail bond agent shall have the first opportunity to return such defendant to the proper court. If he is unable to return such defendant, the state of Missouri shall return such defendant to the proper court for prosecution, and all costs incurred by the state in so returning a defendant may be levied against the bail bond agent or general bail bond agent in question.
      (Emphasis added).
      All statutory references are to RSMo 2000 and all rules references are to Missouri Court Rules (2005) unless otherwise stated.

      . The Sheriff testified that he had not placed the warrant in the N.C.I.C. system because the Missouri crimes with which Carroll was charged were not serious enough to require such a measure.

      . The letter stated that the Sheriff's department expended $2,226.00 for two round-trip airline tickets to Georgia; $556.50 for a one-way return ticket for Carroll; $29.83 on meals; $87.87 for a rental car while the officers were in Georgia; and, $88.39 for the night the officers had to stay in a hotel.

      . The Official Code of Georgia Annotated (Mi-chie) section 17-13-46 (2002) states, in pertinent part:
      (a) Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation, or parole, may waive the issuance and service of the warrant provided for in Code Sections 17-13-27 and 17-13-28 and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record within this state a writing which states that he consents to return to the demanding state; ...
      (b) If and when the consent has been duly executed, it shall forthwith be forwarded to the office of the Governor of this state and filed therein. The judge shall direct the officer having the person in custody to deliver forthwith the person to the duly accredited agent or agents of the demanding state and shall deliver or cause to be delivered to the agent or agents a copy of the consent. Nothing in this Code section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state; nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights, or duties of the officers of the demanding state or of this state.
      Ga.Code Ann. § 17-13-46 (2002).

      . As noted, section 374.770.2 expressly requires the surety to pay the costs of returning a defendant. In a similar vein, section 374.770.1 provides that "the surety be responsible for the return of the defendant.” Although cases interpreting the first subsection of the statute can be found, none have been found that deal with the "first opportunity to return” provision of the second subsection.