author: JOHN E. PARRISH, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent v. Richard B. HAGAN, Defendant-Appellant.
    No. 25854.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 8, 2004.
    Amy Bartholow, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane Dixon Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
   JOHN E. PARRISH, Presiding Judge.

Richard B. Hagan (defendant) appeals convictions, following a jury trial, of two counts of promoting child pornography in the first degree. § 573.025. Defendant was charged as, found to be, and sentenced as a prior offender. § 558.016.2, RSMo 2000. This court affirms.

Sixteen-year-old Rachel Snelling lived in Sedalia, Missouri, in May 1999. She was acquainted with defendant. Rachel testified that when she first met defendant, “he made a reference to [her] looks and then [her] age”; that she told him she was 16.

Shortly after Rachel met defendant, she was placed in foster care with Joan and Bill Grose. Rachel went to a friend’s house one evening. Defendant was there. Rachel talked to him about where she was living. Defendant told her he knew Bill Grose. Rachel told defendant she wanted to become a dancer. She explained that they talked about it briefly but because she was not 18, little was said. Defendant’s girl friend, Melody, was a dancer. Rachel was asked the following questions and gave the following answers:

Q. Was there ever any other time when you talked to [defendant] where there was some discussion with him or in his presence about how old you were?
A. Yes.
Q. What?
A. He told me to make sure that Melody was aware that I was eighteen and not sixteen. Other than that we were not — •
Q. Well, I don’t understand. He told you to make sure that Melody was aware you were eighteen?
A. (Witness nodded head).
Q. But you weren’t eighteen?
A. Right.
Q. Okay, so I don’t understand.
A. I was not supposed to let any of the other people around aware of my age.
Q. Okay. So in other words, [defendant] told you to fib about it?
A. Right.

On November 20, 1999, Rachel called defendant and arranged for defendant to meet her at a liquor store. Rachel wanted money. Defendant was to pay her $200. She went with him to his house. She knew she would be “having sex.” Defendant told her there would be other men at his residence. Three men were there when Rachel and defendant arrived. They were Damien Kinner, Eric Dotson, and Mike Peoples. Mike Peoples lived next door to defendant. Damien Kinner and Eric Dotson worked for Peoples. Rachel knew Damien Kinner. She did not learn the other two men’s names until later.

Rachel had sexual relations with Damien Kinner at defendant’s house. Defendant was in the room where this occurred. He videotaped Rachel and Damien’s actions. Rachel told the jury defendant asked them to go on, to continue what they were doing. She said defendant was “kind of narrating on the tape.” Defendant told her to take off her clothes. She did what he said because she wanted the money.

After Rachel and Damien Kinner had sexual relations, she showered with him. Shortly after that she had sexual relations with all three men who were at defendant’s house when she and defendant arrived. Rachel explained that defendant gave instructions to the participants; that defendant “had a camera the whole time.” The videotape recordings Rachel described were admitted in evidence.

Defendant presents two points on appeal. The first alleges instructional error at trial. The second asserts trial court error directed to the trial court failing to act when a witness commented on videotape recordings other those admitted in evidence. Point I is directed to Instruction Nos. 5 and 7. The part of Instruction No. 5 to which Point I is directed states:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about November 20, 1999, at a time different from that set out in Instruction Number 7, in the County of Pettis, State of Missouri, the defendant video taped certain material consisting of Rachel Snelling engaged in various acts of sexual intercourse and deviate sexual intercourse with Damien Kinner, and
Second, that such material depicted sexual conduct, and
Third, that such material had as one of its participants a child under the age of 18 years, and
Fourth, that defendant at the time knew of the content and character of the material,
then you will find the defendant guilty under Count I of Promoting Child Pornography First Degree
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

The following terms used in these instructions are defined as follows:

“Material” means any video tape or video tape production.
“Sexual conduct” means deviate sexual intercourse, sexual intercourse, or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or the breast of a female in an act of apparent sexual stimulation or gratification.

Instruction No. 7 differs from Instruction No. 5 in its paragraph First that provides, “First, that on or about November 20, 1999, at a time different from that set out in Instruction Number 5, in the County of Pettis, State of Missouri, the defendant video taped certain material consisting of Rachel Snelling engaged in various acts of sexual intercourse and deviate sexual intercourse with Damien Kin-ner, Eñe Dotson, and Mike Peoples”, and in the text of the instruction that immediately follows paragraph Fourth which refers to Count 2 rather than Count 1. (Emphasis added.)

Point I contends the trial court erred in submitting Instruction Nos. 5 and 7 to the jury “in that the instructions did not specifically require the jurors to find that [defendant] knew that a participant on the videotape was under eighteen years of age, thus lowering the State’s burden of proof for conviction.” The offenses with which defendant was charged and for which he was found guilty occurred on or about November 20, 1999. The statute that denotes the offenses, § 573.025.1, as it existed at that time, provided:

A person commits the crime of promoting child pornography in the first degree if, knowing its content and character, he photographs, films, videotapes, produces, publishes or otherwise creates child pornography, or knowingly causes another to do so.

Section 573.010(1) defined child pornography as “any material or performance depicting sexual conduct, sexual contact, or a sexual performance as these terms are defined in section 556.061, RSMo, and which has as one of its participants or portrays as an observer of such conduct, contact, or performance a child under the age of eighteen; provided, that it shall not include material which is not the visual reproduction of a live event[.]”

Section 556.061, RSMo Cum.Supp.1999, defined sexual conduct, sexual contact, and sexual performance as follows:

Code definitions. — In this code, unless the context requires a different definition, the following shall apply:
(29) “Sexual conduct” means acts of human masturbation; deviate sexual intercourse; sexual intercourse; or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or the breast of a female in an act of apparent sexual stimulation or gratification;
(30) “Sexual contact” means any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person;
(81) “Sexual performance”, any performance, or part thereof, which includes sexual conduct by a child who is less than seventeen years of age;

The terms included in Instruction Nos. 5 and 7 are consistent with the statutes applicable at the time the charged offenses were alleged to have been committed. Defendant’s complaint, however, does not go to what was included in the text of the instructions, but to the lack of statements that defendant knew a participant on the videotape recordings was under 18 years of age. However, defendant did not object specifically to Instruction No. 5 or Instruction No. 7 at trial. He did not preserve the issue he now asserts in Point I for appellate review. See Rule 28.03.

At the instruction conference, the trial judge discussed the instructions the parties had tendered. He told the attorneys he would give 13 instructions; that he had refused two instructions submitted by defendant that were “converse instructions having to do with age.” He stated they would be marked Nos. A and B and “[would] be in the court file as refused instructions.” The trial judge again reviewed the instructions that would be given. He identified the instructions that would be given to the jury by the numbers he had assigned to them and identified the party who had tendered each instruction. The state had tendered nine of the instructions. Defendant had tendered four.

Defendant’s trial attorney was permitted to pose objections. He stated defendant “would object to the instructions in their entirety.” He noted that defendant objected to the trial court’s refusing the instructions he had tendered and which had been marked Instructions Nos. A and B. He stated with respect to the instructions that were to be given that defendant objected “to all the instructions as a result of the Court not reading those two instructions.”

Rule 28.03 provides, as applicable here:

Counsel shall make specific objections to instructions or verdict forms considered erroneous. No party may assign as error the giving or failure to give instructions or verdict forms unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. ...

(Emphasis added.)

The record does not reflect that defendant made specific legal objections at trial to the instructions he questions in this appeal. The argument defendant now makes was not preserved for review by this court. See State v. Johnson, 95 S.W.3d 221, 225 (Mo.App.2003). The instructions have, nevertheless, been reviewed for plain error. In order for there to have been plain error, the jury must have been so misdirected as to cause manifest injustice or miscarriage of justice. See Rule 30.20; State v. Howard, 896 S.W.2d 471, 482 (Mo.App.1995). Determination of whether plain error was committed is based on consideration of the facts and circumstances of the particular case. Id.

One of the findings the jury was required to make in order to find defendant guilty of each charge of promoting child pornography in the first degree was that he at the time knew of the content and character of the material he created. See § 573.025.1. The “content” of the material, in order for defendant to have been found guilty, had to include acts of a participant who was under 18 years of age. § 573.010(1). Defendant argues that Instruction Nos. 5 and 7 were erroneous because they “did not specifically require the jurors to find that [defendant] knew that a participant on the videotape was under eighteen years of age.”

Defendant’s trial attorney argued to the jury that some children were “beyond protection”; that this is especially true with respect to children who lie about their age and about what they are doing. He told the jury, “The third paragraph of both [Instruction Nos. 5 and 7] say, that such material [that was videotaped] has as one of its participants a child under the age of eighteen years; and fourth, that the defendant at the time knew of the content and character of the material.” He continued his argument by pointing out to the jury that the defendant was required to know what was on the videotape and who was on the videotape. He contended that Rachel convinced the people she was with, which included defendant, that she was 18 years old. He argued that Rachel should not be believed when she testified she had told defendant she was 16. He continued, “Why should we believe her? And ultimately you’re going to have to believe that beyond a reasonable doubt before you can find [defendant] guilty of either count. You’re going to have to believe it beyond a reasonable doubt.”

The state, in final argument, contested defendant’s assertion that Rachel lied about telling defendant she was 16. The prosecutor asked the jury to remember what the evidence was. He argued that the only evidence of Rachel lying about her age was that she told defendant’s girlfriend she was 18, and she did that because defendant told her to do so; that defendant told Rachel she could not get the job she wanted unless she told people she was 18.

Based on the facts and circumstances of this case, as gleaned from the record on appeal, this court finds no manifest injustice or miscarriage of justice. Point I is denied.

Point II is directed to testimony of Pettis County Deputy Sheriff David Keller. Officer Keller testified that he participated in executing a search warrant at defendant’s residence in search of “35mm nude photographs of Rachel and videotapes.” He testified that he found “some videotapes that depicted Rachel Snelling.” He identified one of the videotapes that was later admitted in evidence as one of the tapes he seized at defendant’s residence. He explained he recognized it because he had placed his initials on it and it had a label he had placed on it. Officer Keller testified that he had seized a number of videotapes in the course of executing the search warrant. He then identified a second videotape that was later admitted in evidence, explaining that it had been seized during the search. The following colloquy then occurred.

Q. [By the prosecuting attorney] Okay. The night that you executed the search warrant, did you view those videotapes?
A. [By Officer Keller] Yes, sir. Well, we viewed enough of them to tell what they were.
Q. These two?
A. These two.
Q. Not the whole thing necessarily?
A. No, no. There were 170 some tapes.
Q. Well, I’m talking about these two.
A. No, sir.
Q. Did you view those?
A. Well, we viewed them enough to determine that they were Rachel and what they were about. We—
Q. All right, did you subsequently view the entire tape?
A. Yes, sir.

Point II asserts that “[t]he trial court plainly erred in failing to intervene sua sponte and declare a mistrial after State’s witness Officer Keller testified that he seized more than 170 some [videotapes from [defendant’s] home ... in that this testimony was not relevant and its probative value was outweighed by its prejudicial nature since the fact nearly two hundred videotapes had been seized was evidence that [defendant] had been involved in other criminal activity, resulting in a manifest injustice.”

“One of the requirements for preserving an evidentiary issue for appellate review is an objection when the evidence is sought to be introduced at trial.” State v. Brown, 58 S.W.3d 649, 652 (Mo. App.2001). No objection was made at trial to the testimony about which defendant now complains. Defendant’s complaint in Point II was not preserved for review by this court. Id. at 653. Defendant obviously recognizes this in that he contends the trial court “plainly erred” and further argues the testimony resulted “in a manifest injustice.” Rule 30.20 permits this court to examine a claim of error, notwithstanding a party’s failure to preserve the issue for appeal, to determine if it resulted in manifest injustice or miscarriage of justice that affected a defendant’s substantial rights. Whether to grant plain error review lies within the reviewing court’s discretion. State v. Johnson, 95 S.W.3d at 225 n. 3.

Defendant’s claim of plain error does not facially establish substantial grounds for believing that manifest injustice or miscarriage of justice resulted under the facts and circumstances of this case. The request for plain error review is declined. Point II is denied. The judgment is affirmed.

SHRUM and BARNEY, JJ., concur.

      . References to statutes are to RSMo 1994 unless stated otherwise.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Susan K. HENSON, Appellant, v. Donald K. WILLIS, Respondent.
    No. WD 63427.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2004.

      William L. Burk, Independence, MO for Appellant.
    Rebecca Rivers, Kansas City, MO for Respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.
   ORDER

PER CURIAM.

Susan K. Henson appeals the ruling of the trial court in favor of Donald K. Willis in her action under Section 534.020 RSMo 2000.

We determine that no issue has been preserved for appeal. We affirm by summary order pursuant to Rule 84.16(b). A memorandum has been furnished to the parties as to the basis of our decision. The judgment is affirmed. Each party shall bear his or her own costs on appeal.


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

text:
    In the Matter of the FORECLOSURE OF LIENS FOR DELINQUENT LAND TAXES BY ACTION IN REM, Director of Collections for Jackson County, City of Kansas City, Missouri, Appellant-Respondent, v. The HOUSING AUTHORITY OF KANSAS CITY, MISSOURI, Respondent-Appellant.
    Nos. WD 61657, WD 63227.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2004.

      Nicole Janece Rowlette, Kansas City, for Appellant.
    Kevin R. Thomas, Kansas City, for Respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.
   JAMES M. SMART, JR., Judge.

This case involves a land-tax dispute between the Housing Authority of Kansas City and the City of Kansas City. The City, pursuant to its charter, enacted an assessment on all real property abutting various boulevards and streets maintained and supervised by the Board of Park Commissioners. The City filed two separate suits seeking to collect unpaid assessments on seventeen properties owned by the Housing Authority. The City appeals from summary judgment entered in favor of the Authority in the first suit, while the Authority appeals from the judgment entered in the City’s favor in the second suit. We affirm the grant of summary judgment in the first suit and reverse the judgment in the second suit.

Factual Background

The Missouri statutes grant cities the authority to issue special assessments. Section 88.812 authorizes third and fourth class cities and cities with constitutional charters to issue assessments to pay for certain improvements — e.g., “for constructing and repairing sidewalks and sidewalk curbing, and for sewers, and for grading, paving, excavating, macadamizing, curbing and guttering of any street alley, square, or other highway[.]” The parties agree that the City, which has a constitutional charter, is an authorized city. The statute provides that the assessments “shall be levied and collected as a special tax.” The statute states that this tax bill “shall be a lien against the ... parcel of land described [therein].”

Section 88.812 sets forth terms and procedures for the issuance of assessments. The statute also affords constitutional charter cities discretion to adopt different procedures in its own charter regarding the assessments:

Notwithstanding the provisions of this section, a constitutional charter city may provide for special assessments for constructing and repairing sidewalks and sidewalk curbing, and for sewers, and for grading, paving, excavating, macadamizing, curbing and guttering of any street, avenue, alley, square or other highway, or part thereof, and repairing the same upon such terms, conditions and procedures as are set forth in its own charter or ordinances.

The City exercised this discretion in section 62 of its charter, authorizing the city council to levy by annual ordinance a “special assessment,” of no more than $1 per foot, on land abutting the boulevards, parkways, roads, and other highways under the control of the Board of Park Commissioners.

Each year during the period from 1997 to 2001, the council, by way of ordinances, levied special assessments of $1 per foot pursuant to its authority under the charter. The Housing Authority owns seventeen properties within areas subject to these ordinances. The Authority received special assessments each year. However, the Authority refused to pay the assessments. Subsequently, the two suits that are the subject of this appeal were filed.

I. The First Suit

On May 31, 2000, the Director of Collections for Jackson County, on behalf of the City, filed a “Petition and List of Parcels of Land Encumbered with Delinquent Taxes” (Delinquent Land Tax Suit No. K-2000) in the Jackson County Circuit Court. This action was filed under the Land Tax Collection Law, RSMo. Chapter 141. The Director alleged that the Housing Authority was delinquent in the payment of taxes on its parcels of land. The Director sought to foreclose on the alleged tax liens and sought a sale of all parcels not timely redeemed.

The trial court concluded that execution and sale of a property is the only remedy to collect for taxes and special assessments under section 141.240. It also determined that the Housing Authority properties are not subject to execution and sale under section 99.200. Accordingly, the court concluded that section 141.240 provides no mechanism for the City to collect assessments owed by the Authority and entered summary judgment for the Authority.

The City appeals.

Analysis

In its first point on appeal, the City argues that the court erred in entering summary judgment for the Housing Authority.

All the facts pertinent to the issues addressed herein are undisputed. Because the propriety of summary judgment is a question of law, our review is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record and all reasonable inferences therefrom in the light most favorable to the non-mov-ant. Bost v. Clark, 116 S.W.3d 667, 672 (Mo.App.2003). In evaluating a grant of summary judgment, we use the same criteria employed by the ruling court. Welch v. Davis, 114 S.W.3d 285, 292 (Mo.App.2003). Summary judgment is appropriate where the movant shows that he is entitled to judgment as a matter of law and no genuine issues of material fact exist. Rule 74.04(c)(6).

The City filed its first suit against the Housing Authority under the Land Tax Collection Law, RSMo. Chapter 141. The primary purpose of the law is to provide a convenient and efficient method for collecting longstanding tax delinquencies on real estate. Buchanan v. Cabiness, 240 Mo.App. 829, 221 S.W.2d 849, 852 (1949). The method it prescribes is foreclosure. See Section 141.260.

The Housing Authorities Law Protects The Housing Authority from Both Lien and Execution

The Housing Authorities Law, RSMo Chapter 99, authorizes the creation of a housing authority in each city and each county of Missouri. Section 99.040. A housing authority is a municipal corporation that has as its purpose the re-development of areas that contain unsanitary or unsafe housing conditions for the benefit of persons of low income. Sections 99.030 and 99.080. Any real property owned by a housing authority is exempt from foreclosure or any other judicial process, except for hens that the housing authority has itself voluntarily created:

All real property of an authority shall be exempt from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against the same nor shall judgment against an authority be a charge or lien upon its real property; provided, however, that the provisions of this section shall not apply to or limit the right of obligees to foreclose or otherwise enforce any mortgage of an authority or the right of obligees to pursue any remedies for the enforcement of any pledge or hen given by an authority on its rents, fees, or revenues.

Section 99.200.

In light of this exemption, the trial court concluded that the City could not levy and sell the Housing Authority properties at issue through a judgment execution pursuant to Chapter 141. Because such execution is the only remedy available under that chapter, the court granted summary judgment for the Housing Authority.

The City concedes that section 99.200 prohibits it from foreclosing upon the Housing Authority’s property. Nevertheless, the City argues that it has a lien that remains with the property. The City contends that “should the ownership ever change on these properties, [it] could then execute on these liens.” According to the City, it is still entitled to judgment, and the execution of that judgment should be stayed until the change in ownership takes place.

The remedy available under Chapter 141—foreclosure—does not apply to property owned by a housing authority because section 99.200 flatly exempts such property from foreclosure except for any liens voluntarily created by the housing authority. The City fails to show any other remedy available under Chapter 141 that allows it to collect assessments from the Authority. The plain language of section 99.200 also contradicts the City’s contention that it is entitled to some sort of hen on the property. The statute provides that a “judgment against an authority [shall not] be a charge or lien upon its real property.” That language is plain and unambiguous in the context of the statutory purpose. The obvious purpose is to exempt housing authorities from collection remedies (for all liens except voluntary liens) affecting the property in any way.

Point denied.

In its second point, the City contends that the trial court erred in failing to decide whether the boulevard assessment is a tax or an assessment. The court declined to address this issue, granting summary judgment on the basis discussed in Point I above. In view of our ruling that the trial court did not err in granting summary judgment on this basis, Point II is moot.

The Housing Authority was entitled to judgment as a matter of law in the first suit. Thus, the trial court did not err in entering summary judgment in its favor.

II. The Second Suit

On January 10, 2002, after the Director of Collections had filed the first suit but before the court had entered summary judgment for the Housing Authority in that case, the City filed a “Petition for Recovery of Personal Debt” with the Jackson County Circuit Court. The City sought to recover the unpaid assessments on seventeen Housing Authority properties, alleging that the Housing Authority was “personally liable” for a total of $18,427.42 plus a 10% late payment penalty-

The Housing Authority filed a summary judgment motion, alleging, inter alia, that section 319 of the City’s charter — which purports to authorize a personal judgment against various entities for unpaid assessments — is unconstitutional to the extent that it purports to create liability for a public corporation. The trial court denied the motion.

Section 319 states, in pertinent part, as follows:

Whenever any land liable to be assessed with special benefits to pay for any public improvement mentioned in this charter shall be owned by a railroad corporation, cemetery association, school district, or any other public or quasi-public corporation, or by any other corporation, association, society or person as trustee, such land shall be assessed and a special tax bill issued to evidence the same in the same manner as though the same were the property of a private person; and if a sale of such land to enforce such assessment is contrary to the public policy or the laws of this state then the amount of such assessment, as may be evidenced by the special tax bill, shall be paid by such railroad corporation, cemetery association, school district, county or other public or quasi-public corporation, or by such association, society or person as trustee. Suits shall be instituted to enforce the collection of any such special tax bills in the same manner and in the same courts as on other special tax bills, and the judgment in any such suit, if for the plaintiff, shall be a personal one against the owner of the land as assessed, for the amount due on such tax bill;....

Relying on section 88.812 of the Missouri statutes and the City’s charter, the trial court concluded that the City was authorized to include the properties owned by the Housing Authority in the special assessments for boulevard maintenance. The court also concluded that section 319 of the City’s charter provided the remedy of an in personam judgment against the Authority as opposed to an in rem remedy against the property itself. Accordingly, the court entered judgment in favor of the City for the assessments, interest, and collection costs in the amount of $29,225.06. The Housing Authority appeals.

Analysis

We take up the points out of order beginning with Point II.

In its second point on appeal, the Housing Authority contends that the trial court erred in entering a money judgment for the City. According to the Authority, the City had no authority to levy boulevard assessments on Authority property. This presents an issue of law. Our review is de novo. Baldwin v. Dir. of Revenue, 38 S.W.3d 401, 405 (Mo. banc 2001).

The Missouri Constitution exempts state property from taxes. See Art. X, Section 6; see also Section 137.100. Because housing authorities are political subdivisions of the state, this exemption extends to the Housing Authority properties in this case. Schmoll v. Housing Authority of St. Louis County, 321 S.W.2d 494, 496 (Mo.1959). This exemption, however, applies only to real estate taxes for general purposes. Tri-County Levee Dist. v. Mo. Highway & Transp. Comm’n, 42 S.W.3d 779, 786 (Mo.App.2001). It does not apply to special assessments for local improvements. Id.

Because there is no constitutional prohibition against the assessment of state property, the question of whether state property is subject to special assessments by a city is determined by legislative will. City of Clinton, 22 S.W. at 495. To exercise this will, the legislature must do so either through express terms or clear implication. Id.; Senter, 337 Mo. 238, 85 S.W.2d 21, 26 (1935). This mandate stems from the general rule that statutes are not construed as a limit on state sovereignty unless the language clearly indicates such an intent. Id. “Language allowing assessment against properties generally is insufficient to impose liability on property owned by the state.” Tri-County Levee Dist., 42 S.W.3d at 787.

Chapter 88 Does Not Authorize Assessments Against State Property

Although section 88.812 gives cities the power to levy special assessments for “constructing and repairing sidewalks and sidewalk curbing, and for sewers” and for “grading, paving, excavating, macadamizing, curbing and guttering” streets and other public works, the language is general as to who may be subject to assessments. “[Ljanguage allowing assessment against properties generally” does not authorize assessment against state property. See Tri-County Levee Dist., 42 S.W.3d at 787. The legislature must clearly express the intent to allow assessments against state property. See, e.g., id. at 787 (finding this intent where statute specifically contemplated that “all property owned by the state” would be included in the assessments). Here, the General Assembly in section 88.812 has not clearly expressed such an intent.

The City claims its authority under section 319 of the charter is derived from section 88.812 which grants the power for cities to levy assessments. The City says that section 88.812 does authorize charter cities to issue assessments against public property — indirectly and impliedly. The City claims that charter cities may go beyond the authority granted in section 88.812 to other cities because the statute says a charter city may provide for its own “terms and conditions, and procedures.”

Reviewing that language in section 88.812 in context, we note that the statute, after authorizing assessments, sets forth some “terms, conditions and procedures” for assessments. It describes how plans and specifications shall be prepared and filed. It provides the method and frequency of publication of notice to interested parties in both a daily and a weekly newspaper. It provides for a public hearing on the proposed assessments. The statute further specifies the maximum interest rate on the tax bills. Finally, it also specifies the duration of liens. Following discussion of those “terms, conditions, and procedures” applicable to other cities, the statute then gives constitutional charter cities discretion to set forth, within their charters, their own “terms, conditions, and procedures” for assessing properties.

The City argues that the language about the city’s discretion to set its own “terms, conditions, and procedures” permits the City to go beyond the express authority granted in section 88.812 to provide (in its charter) for the assessment of property owned by the State or any of its agencies. We disagree. We believe it is obvious, in the statutory context, that the City’s authority is only to separately adopt its own “terms, conditions, and procedures.” We are familiar with the meaning of the words “terms, conditions and procedures.” While those words might be understood to allow a method of collection, such as, perhaps, allowing the collection of legitimately imposed assessments by means of a personal judgment, the words cannot reasonably be expanded to substantively grant to the City the right to assess state property and collect the assessments as a personal liability. For the legislature to express the will to allow state property to be taxed, the legislature must do so through express terms or clear implication. City of Clinton, 22 S.W. at 495. The will to allow assessments against state property is not made express. We hold it also is not clearly implied by the language allowing charter cities to adopt “terms, conditions, and procedures.”

Article VI, section 19(a) of the state constitution describes the powers of charter cities:

Any city which adopts or has adopted a charter for its own government, shall have all powers which the general assembly of the state of Missouri has authority to confer upon any city, provided such powers are consistent with the constitution of this state and are not limited or denied either by the charter so adopted or by statute. Such a city shall, in addition to its home rule powers, have all powers conferred by law.

This is a broad grant of authority. However, a city charter may not, as we have seen, exercise powers that are limited or denied by statute. Mo. Const, art. VI, Section 19(a). Where such a conflict exists, the charter provision is void. City of Springfield v. Goff, 918 S.W.2d 786, 789 (Mo. banc 1996). The General Assembly did not provide a means of enforcing any judgment against state property for assessments. It appears that this is because the General Assembly never intended that section 88.812 authorize assessments as to such property. See id.; see also Thogmartin v. Nevada Sch. Dist., 189 Mo.App. 10, 176 S.W. 473, 474 (1915). Accordingly, to the extent that section 319 of the City charter permits assessment of state property, it is void. Because there is no authority for an assessment as to the Authority’s property, there is no authority for a personal judgment against the Authority. The judgment entered in favor of the City in WD 63227 is reversed.

The Authority’s third point, which also relates to the judgment entered in favor of the City, is moot in light of our analysis of Point II.

Conclusion

For the foregoing reasons, we affirm the summary judgment in the first suit (Case No. WD 61657) and reverse the judgment in the second suit (Case No. WD 63227).

ELLIS and HARDWICK, JJ., concur.

      . Jackson County, pursuant to an agreement with the City, files an annual petition, which includes delinquent City land taxes and special assessments.

      . Section 390 of the City charter provides that in every suit for the collection of delinquent taxes, the City shall recover 10% of the delinquent bill as costs of the action.

      . Point I challenges the court's denial of summary judgment on this basis. This point is not an appealable point of error because such a denial is not a final judgment. See Betts-Lucas v. Hanson, 31 S.W.3d 484, 485 (Mo.App.2000). This rule applies even when an appeal is taken from a final judgment, as it has been here. State ex. rel. Mo. Div. of Transp. v. Sure-Way Transp. Inc., 884 S.W.2d 349, 351 (Mo.App.1994). The Housing Authority’s second and third points are directed to that judgment. However, the rule does not preclude our review of the underlying merits of the summary judgment motion — e.g., whether the charter provision conflicts with a state statute and is void. This is because this conclusion is compelled by our analysis of Point II, which is an appealable point of error.


author: THOMAS H. NEWTON, Judge.

text:
    CONTINENTAL COAL, INC., Appellant, v. MISSOURI LAND RECLAMATION COMMISSION; City of Independence; Midwest Coal Resources, Inc.; Oswego Coal Co., Inc, Respondents.
    No. WD 63936.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2004.

      John K. Power, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Amy E. Randles, Timothy P. Duggan, Jefferson City, MO, for Respondent, MO Land Reclamation Comm.
    Steven E. Mauer, Kansas City, for Respondent, City of Independence.
    David A. Taylor, Jefferson City, MO, for Respondent, Oswego Coal, Inc.
    Brian E. McGovern, Chesterfield, MO, for Respondent, Midwest Coal Resources.
    Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

This appeal stems from administrative proceedings involving the issuance of a permit to mine coal. Appellant Continental Coal, Inc. (CCI) contends that the director of the Missouri Land Reclamation Commission (LRC) improperly issued a permit that allows Oswego Coal Company, Inc. (Oswego) to mine certain coal reserves in Bates County known collectively as the Hume Mine. CCI contends that it holds an interest in the pertinent mining leases as a creditor of a previous leaseholder, Midwest Coal, L.L.C. (Midwest Coal). CCI contends that Midwest Coal fraudulently conveyed the leases to an affiliated company, Midwest Coal Resources (Midwest Resources), which then assigned the leases to Oswego.

After the director issued the mining permit to Oswego, CCI sought administrative review of the director’s decision before the LRC. The LRC upheld the director’s decision. CCI then sought judicial review of the LRC’s decision in the circuit court. The circuit court “affirmed” the LRC’s decision and dismissed CCI’s petition for review based upon CCI’s purported lack of standing. CCI appeals. We agree that CCI lacks standing and affirm the judgment of the circuit court.

I. Factual and ProceduRal Background

CCI’s claim pertains to seven leases that comprise the surface and mineral estates within an area of Bates County known as the Hume Mine. At one time, Midwest Resources held six of these leases and Midwest Coal held the seventh lease. Midwest Coal and Midwest Resources are affiliated companies. Midwest Coal is a coal company started by Michael G. King and Stephen S. Stipanovich in 1997. Midwest Resources is a coal company started by King and Stipanovich in 1999. King and Stipanovich own both companies. From May 1998 until May 2002, Midwest Coal had the right to supply coal to the city of Independence under a written contract (the coal supply contract). The city holds a perfected security interest in the Hume Mine leases.

A. Midwest Resources’ Permit Application

In 2000, Midwest Resources applied for a permit to mine coal at the Hume Mine under Missouri’s Surface Coal Mining Law (SCML). See generally § 444.800 through § 444.970. The LRC is the state agency responsible for administering the SCML. See § 444.800.4 (directing the LRC to “rigidly enforce this law and to adopt whatever rules and regulations necessary to accomplish [the stated statutory] purposes.... ”). Under the supervision of the LRC director, the Land Reclamation Program (LRP) staff implements the SCML on behalf of the LRC. One of the director’s duties is to review applications for surface coal mining permits. When he has received a complete permit application and reclamation plan, the director must grant, require modification of, or deny the application for a permit. See § 444.835.1.

The LRP staff reviewed Midwest Resources’ permit application for the Hume Mine and discovered problems that could have prevented Midwest Resources from obtaining the permit. In March 2002, Midwest Resources decided to transfer its permit application to Oswego and applied to the LRP to do so. Consistent with its decision to transfer the permit application, Midwest Resources assigned the Hume Mine leases to Oswego in May 2002. Midwest Coal also assigned the coal supply contract to Oswego. In both instances, the city consented to these transfers.

The parties previously stipulated that “[ajlmost all sections of the permit application submitted by Midwest Resources remained unchanged for the permit application transfer to Oswego” except that “new pages of Section One, specifically concerning Oswego Coal were submitted for review for the permit application transfer. Section One includes information required by 10 CSR 40-6-030(3), Right of Entry and Operation Information.” The parties further stipulated that Midwest Resources had included with its request for the permit application transfer written, executed assignments of the seven Hume Mine leases.

B. Oswego’s Permit Application

On June 5, 2002, the director approved Midwest Resources’ request to transfer its permit application to Oswego and the LRP staff reviewed Oswego’s permit application. As the review of Oswego’s permit application neared completion in June 2002, the director received a letter from CCI’s president, Philip E. Tearney, notifying the director that CCI had a potential property interest in the coal reserves covered by the leases and that CCI had state court litigation pending concerning this interest, a case styled GE Capital Corporation v. Midwest Coal, LLC (the GE Capital litigation), which was filed in St. Louis County Circuit Court on May 6, 2002.

Mr. Tearney’s letter indicated that CCI was acquiring loan documents from GE Capital, that Midwest Coal was the borrower under these loan documents, that King and Stipanovich were guarantors of the loan under these documents, and that the loan documents included a security agreement covering Midwest Coal’s assets. Mr. Tearney explained that Midwest Coal, as well as King and Stipanovich, had defaulted on the loan and that GE previously had filed the GE Capital Litigation for breach of promissory note and breach of personal guaranties.

Mr. Tearney informed the director that CCI intended “to continue to pursue and possibly expand the scope of the Lawsuit to encompass the [coal] Reserves” and further informed him that CCI had “been advised” that King and Stipanovich “were and are the sole owners of the entity that owned the Reserves at the time the Lawsuit was commenced,” that “the Reserves may have been transferred during the pen-dency of the Lawsuit for an amount that was less than fair and adequate under the circumstances” and that “as a result of such transfer, the guarantors may have diminished their personal estates to the detriment of creditors generally and [CCI] specifically.”

Mr. Tearney concluded by requesting that the LRP “take all steps necessary to assure that the above referenced assets are not diminished in value prior to a resolution of the foregoing process.”

Counsel for the director responded to Mr. Tearney’s letter by requesting copies of the loan documents listed in Mr. Tear-ney’s letter as well as a copy of the petition in the GE Capital litigation. Counsel for the director then asked:

Is Continental Coal asserting that Midwest Coal no longer owns the coal leases it has on the Tiger Mine so it cannot transfer said leases to Oswego Coal Company? Or, is this simply a matter in which Continental Coal will need to be listed as a controller on the permit to mine coal at the Tiger Mine that is being drafted for Oswego Coal Company[?]

Meanwhile, the LRP obtained copies of the U.C.C. filings between Midwest Coal and GE, which were filed on December 31, 2001. The LRP did not find in these filings any mention of the leases that make up the Hume Mine. The LRP also obtained copies of the U.C.C. filing between Midwest Coal and the city, which was filed on August 24, 2000. This filing indicated that Midwest Coal had granted a security interest to the city in eight leases, but only one of those leases- — the Murray lease — is part of the Hume Mine.

In a second letter, dated June 27, 2002, Mr. Tearney notified the director that CCI also had acquired Dean Machinery Company’s rights to a contract for the sale of goods and materials to Midwest Coal, a guaranty of the account executed by King, a lawsuit filed in Jackson County Circuit Court due to the failure of Midwest Coal and King to pay the amounts owing on the account, and a partial consent judgment entered by the court in that matter against Midwest Coal on January 25, 2002, in the amount of $235,804.04 plus nine percent interest after the judgment date (the Dean Machinery litigation). Mr. Tearney then said:

Of particular interest is the fact that the purported transfer to Oswego Coal Company was made after the entry of the Judgment. As such, Continental, in its capacity as the holder of the Judgment, will require a showing concerning the facts and circumstances surrounding the conveyance of the Murray Lease. It is our current position that there is no evidence that the conveyance was proper.
Based on all of the foregoing, Continental intends to continue to pursue and possibly expand the scope of the Dean Lawsuit to encompass the [coal] Reserves in the same manner as set forth in our previous letter and to pursue collection efforts in connection with the Judgment. This effort will be in addition to and not in limitation of the actions discussed in our earlier letter. We believe that the Reserves are in question with respect to both positions we hold as a creditor.
Once again, it is the intention of Continental to fully investigate the foregoing. If the facts presented indicate it is appropriate to do so, Continental will seek to have the conveyance of all of the Reserves set aside such that Midwest Coal, LLC and any personal guarantors will have assets adequate to satisfy their obligations to Continental.

Midwest Resources decided to transfer its permit application to Oswego after entry of the consent judgment against Midwest Coal in the Dean Machinery litigation. The parties previously stipulated that a copy of the petition in the Dean Machinery litigation was not provided to the LRP before the agency issued a mining permit to Oswego but that a copy of the petition in the GE Capital litigation— albeit without any of the exhibits mentioned in the petition — was provided to the LRP before the agency issued the permit.

On July 9, 2002, the director notified Oswego by letter that he had approved its permit application for the Hume Mine. The director said that he had “determined that all necessary Information has been provided in accordance with the permitting requirements in chapter 10 CSR 40-6 of the Missouri Code of State Regulations.” But he also alerted Oswego about CCI’s claim and said:

As you might be aware, [CCI] recently sent two letters indicating that [CCI] might have a potential interest in the coal reserves, which are the subject of this permit. Those letters are dated June 18 and June 27, 2002. If you haven’t already seen those letters, we can send you copies. The purpose of mentioning [CCI’s] letters is to put you on notice that [CCI] has raised the possibility of a competing claim to the reserves, and that you may want to sort out that claim prior to mining.

On August 6, 2002, CCI filed a timely request for administrative review of the director’s permitting decision under section 444.850.5. On September 12, 2002, CCI also filed an amended petition in the GE Capital litigation, alleging that Midwest Coal had fraudulently conveyed the Murray lease and licenses and permits issued by the Missouri Department of Natural Resources to Midwest Resources. CCI further alleged that Midwest Resources is the alter ego of Midwest Coal, King and Stipanovich. Although the amended petition mentioned the transfer to Oswego, it did not name Oswego as a party or allege that Oswego participated in the fraud. Furthermore, while CCI asked the court to “attaeh[] any royalties derived from mining the Murry [sic] lease or the Hume Mine” and to “attach[ ] any royalties paid from Owego to Midwest Coal, Midwest Coal Resources, Midwest Coal Mining Company, Inc., King or Stipanovich,” CCI did not request that the court rule on Oswego’s right to mine.

Meanwhile, the LRC allowed Midwest Resources and the City of Independence to intervene in the administrative review. Oswego, Midwest Resources, and the city all filed motions to dismiss CCI’s request for administrative review. The LRC denied these motions.

On October 29, 2002, the parties filed a joint stipulation of facts and waived any right to a hearing. In one of the stipulations, CCI set forth two grounds for contesting the state’s action in issuing the permit: “that (1) Oswego Coal should have disclosed the pending GE and Dean Machinery litigation and the underlying issues contained in said litigations to the [LRP] on its application as it relates to the real property to be mined even though Oswego Coal was not a party to said litigation; and (2) Director Coen should have waited to issue the permit until the pending GE and Dean Machinery litigation and the underlying issues contained in said litigations were resolved for to do otherwise was to determine disputed property interests.”

All of the parties further stipulated that “other than the matters set forth in [the preceding stipulation], the state has met all requirements necessary for meeting its burden of proof at any hearing held regarding this matter.”

All of the parties subsequently briefed the issues based upon the facts submitted in their joint stipulation of facts.

On May 22, 2003, the LRC issued its findings of fact, conclusions of law, and order. The LRC adopted by reference all of the facts agreed to in the parties’ joint stipulations. The LRC then summarized these facts. In its conclusions of law, the LRC disagreed with CCI that the director is required to reject or defer action on any application where property rights are disputed and said:

When read as a whole, the statutes direct the Director and the Commission to rely upon the available information regarding owners and leaseholders of record, and any available court decrees, to determine whether these documents give the applicant indicia of a right to mine the minerals to be covered by the application.
Applicants are required to submit information about pending litigation so that the Director and Commission may determine whether subsequent court decrees have declared the underlying leases or other relevant instruments invalid, or whether subsequent decrees have set aside conveyances relied upon by the applicant. The Surface Coal Mining Law’s declaration that the Director and Commission lack jurisdiction to adjudicate property disputes requires the Director and the Commission to disregard pending litigation over property rights in reaching a decision whether to grant or deny a permit; to take facts alleged in such litigation into account during the permitting process would constitute the very adjudication of property rights which the statute forbids.
Contrary to Continental Coal’s assertion, the granting of a permit under the Surface Coal Mining Act does not constitute an adjudication of property rights. The permit granted to Oswego merely documents that Oswego has obtained the Director’s permission to extract those permitted coal reserves which Oswego in fact has the right to mine.

The LRC further concluded that Oswe-go was not required to disclose the GE Capital and Dean Machinery litigation to the director and said:

It appears to the Commission that a “property dispute” does not even exist in this case. Continental Coal asserts that Midwest [Coal] LLC fraudulently conveyed assets to Midwest Resources. Continental Coal does not assert that Midwest Resources fraudulently conveyed assets to Oswego, and Continental Coal has not sued Oswego. The allegations in Continental Coal’s Lawsuits relate to Midwest [Coal] LLC’s alleged attempt to prevent Continental Coal from collecting on a judgment, and therefore appear to be in the nature of a creditor/debtor collection dispute rather than a property dispute. Continental Coal does not claim that it, as Midwest [Coal] LLC’s creditor, presently has any property right in the lease(s). Likewise, Continental Coal does not claim that it ever had a property right in the leases before Midwest [Coal] LLC’s conveyance of the lease(s) to Midwest Resources. Continental Coal merely claims that Midwest [Coal] LLC has dissipated the assets of Midwest [Coal] LLC by fraudulently conveying one or more leases to Midwest Coal. Even if a court of law were to eventually issue a decree determining that the conveyance was fraudulent, this would not resolve whether Oswego has the right to mine the leases under its assignment from Midwest Resources, and would not vest title in Continental Coal. Presumably, in order to wrest title from Oswego, Continental Coal would have to sue Oswego. For these reasons, Oswego was not required to disclose the Lawsuits to the Director.

The LRC also disagreed with CCI that issuance of a permit to Oswego would prevent CCI from protecting any contingent rights that it may have in the coal reserves that are the subject of Oswego’s permit and said:

Continental Coal has not made any effort to join Oswego or obtain a temporary restraining order against Oswego in the Lawsuits to date, but issuance of the permit will not prevent Continental Coal from doing so. Following the Director’s issuance of the permit on July 9, 2002, Continental Coal amended its pleadings in the Lawsuits to add new parties. This makes it clear that the permit does not have a preclusive effect on Continental Coal’s civil claims. To the extent that any party to the Lawsuits attempts to argue that the Director’s permitting decision collaterally estops Continental Coal from asserting a fraudulent conveyance claim, Continental Coal can rely on the language of the Surface Coal Mining Law, which clearly eliminates any jurisdiction in the Commission to adjudicate property disputes, to refute such argument.

The LRC did not decide whether CCI had standing to seek administrative review because the LRC concluded that the director had properly issued the permit to Oswego.

On June 18, 2008, CCI filed a petition for judicial review in the Cole County Circuit Court. The circuit court allowed Midwest Resources, the City of Independence, and Oswego to intervene. These parties then filed motions to dismiss CCI’s petition for lack of standing. After holding a hearing on the standing question, the circuit court “affirmed” the LRC’s order and dismissed CCI’s petition for lack of standing.

II. Analysis

A party cannot obtain relief from a court if that party lacks standing. See, e.g., Querry v. State Highway & Transp. Comm’n, 60 S.W.3d 630, 634 (Mo.App.W.D.2001). Standing is, therefore, a threshold issue. Id. To have standing, the party seeking relief “must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote.” Ste. Genevieve Sch. Dist. R II v. Bd. of Aldermen, 66 S.W.3d 6, 10 (Mo. banc 2002).

“Standing is akin to jurisdiction over the subject matter, in limine.” State ex rel. Mathewson v. Bd. of Election Comm’rs, 841 S.W.2d 633, 634 (Mo. banc 1992). As such, it may be raised at any time and may be raised sua sponte by the court. Id.

Because CCI’s standing is at issue in this case, we address that threshold issue first.

A. Standard of Review

When a party appeals from the circuit court’s judgment in an administrative law case such as this one, we ordinarily review the decision of the LRC rather than the judgment of the circuit court. See Lincoln County Stone Co. v. Koenig, 21 S.W.3d 142, 145 (Mo.App. E.D.2000) (court reviewed LRC’s decision to grant mining permit rather than circuit court’s judgment reversing the LRC’s decision). In this case, however, both appellant and respondents appear to recognize that we should review the circuit court’s judgment on the issue of standing because it was the circuit court — not the LRC — that decided this threshold jurisdictional issue.

In a somewhat similar case, we reviewed the circuit court’s judgment in a writ review proceeding instead of the administrative agency’s decision because the party appealing from the circuit court’s judgment was attacking not the agency’s decision but the circuit court’s jurisdiction over the matter. State ex rel. Midwest Gas User’s Ass’n v. Pub. Serv. Comm’n, 996 S.W.2d 608, 612 (Mo.App. W.D.1999). In doing so, we applied the now-familiar standard of review that governs court-tried civil cases in this state. Id. (citing Murphy, 536 S.W.2d at 32). See also 20A AlfRed S. Neely, Administrative Praotioe and Procedure, § 12.43, p. 101 (2001) (“[T]he general proposition that the appellate court reviews the agency decision and not that of the lower court is grounded in the assumption that the challenge is aimed at the agency’s decision. If, instead, the object of the attack is the lower court’s jurisdiction, the appellate court will review the judgment of the lower court.”).

Like the appellant in Midwest, CCI in the first instance is challenging the circuit court’s ruling on a threshold jurisdictional issue. We therefore review the circuit court’s ruling on the question of standing.

B. Standing Analysis

Three different, but related, statutes pertain to the question of standing in this case. Section 444.850.8 addresses appeals from the LRC’s permitting decisions. It says:

Any applicant or any person with an interest which is or may be adversely affected who has participated in the administrative proceedings, and who is aggrieved by the decision of the commission or if the commission fails to act within the time limits specified, shall have the right to appeal in accordance with section 444.900.

Section 444.900 in turn specifically addresses judicial review of the LRC’s decisions. It says:

All final decisions or orders of the commission shall be subject to judicial review as provided in chapter 536, RSMo. No judicial review shall be available, however, until all administrative remedies are exhausted. The availability of such review shall not be construed to limit the operation of the rights established in section 444.880 except as provided therein.

And section 536.100 generally addresses judicial review of administrative agency decisions in contested cases. It says:

Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review thereof, as provided in sections 536.100 to 536.140, unless some other provision for judicial review is provided by statute; provided, however, that nothing in this chapter contained shall prevent any person from attacking any void order of any agency at any time or in any manner that would be proper in the absence of this section. Unreasonable delay on the part of any agency in deciding any contested case shall be grounds for an order of the court either compelling action by the agency or removing the case to the court for decision.

No Missouri case has addressed either section 444.850 or section 444.900. Likewise, no Missouri case has addressed how all three sections work together. CCI argues, however, that the Missouri Supreme Court recently addressed analogous standing provisions in Missouri Bankers Association v. Director of the Missouri Division of Credit Unions, 126 S.W.3d 360 (Mo. banc 2003). In that case, a bank and a banking association challenged the decision of the credit union commission to allow a credit union to expand its field of membership. Id. at 362. The bank and the banking association then sought judicial review in the circuit court, which dismissed their petition for lack of standing. Id. at 362-63.

Standing to contest the decision granting the credit union’s application to expand its membership was governed by section 370.081.5, which gives “ ‘any person or entity claiming to be adversely affected ... the right to contest the decision by appealing the decision to the credit union commission’ ” and which gives “ ‘[a]ny party who is aggrieved by a final decision of the commission’ ” the right to appeal that decision to the Cole County Circuit Court. Id. at 363 (quoting section 370.081.5).

The Missouri Supreme Court held that this provision gave the bank and the banking association standing to contest the decision granting the credit union’s application and said:

Under the plain meaning of this section, the right to appeal a decision of the Director is afforded to a uniquely broad class of affected parties, that is, to: “any person or entity claiming to be adversely affected.” This language is open-ended. It is not restricted to an entity that is adversely affected in an immediate and direct manner, such as a credit union whose application is denied. Therefore, it is applicable, instead, to any person or entity that is adversely affected, directly, indirectly, and to whatever extent, by the denial or even the approval of a credit union application. A person or entity so affected is entitled to become a party to an appeal to the Commission. The party is then “aggrieved by a final decision of the Commission,” if the party loses the appeal and continues to be in some way adversely affected by the underlying decision of the Director. The aggrieved or losing party then has standing to appeal the Commission’s decision to the circuit court.

Id. at 363-64.

Concluding that section 370.081.5 controlled the question of standing on this issue, the court refused to apply the case law definition of “aggrieved” as used in section 536.100, because “the restrictive case law definition for the term ‘aggrieved’ under section 536.100 was formulated in the absence of any clear statutory direction” while section 370.081.5 “directs that a party is ‘aggrieved’ by a final decision merely by being ‘adversely affected’ by the decision.” Id. at 364.

And standing to contest the validity of a state regulation in the case was governed by section 536.053, which gives “ ‘[a]ny person who is or may be aggrieved by any rule promulgated by a state agency ... standing to challenge any rule promulgated by a state agency and [to] bring such actions pursuant to the provisions of section 536.050.’ ” Id. at 365 (quoting section 536.053).

Initially, the court observed that section 536.053 is similar to section 370.081.5 in the sense that both are “couched in broad and unrestricted terms.” Id. Although the credit union argued that the phrase “is or may be aggrieved” should be interpreted “solely in a temporal sense to mean that a person has standing who is now aggrieved or who may be aggrieved in the future” and that this phrase should not be interpreted to confer standing “in the substantive sense to mere economic competitors,” the court rejected this argument. Id. The court concluded that this interpretation would make section 536.053 “redundant and meaningless” in light of section 536.050, a companion provision that already confers standing upon persons who may be aggrieved in the future. Id. Accordingly, the court concluded that section 536.053 also confers standing upon economic competitors. Id.

CCI contends that the reasoning in Missouri Bankers applies here as well and that CCI has standing both as a creditor seeking to establish that the Hume Mine leases in fact belong to it and as an economic competitor of Oswego Coal. We disagree.

1. CCI’s status as a creditor of Midwest Coal does not give it an interest that is or may be adversely affected by the LRC’s permitting process

Like section 370.081.5, section 444.850.8 is unique and quite broad. It gives any “applicant or any person with an interest which is or may be adversely affected who has participated in the administrative proceedings, and who is aggrieved by the decision of the commission” the right to appeal the commission’s decision to the circuit court. § 444.850.8. Like section 370.081.5, it seems to direct “that a party is ‘aggrieved’ by a final decision merely by being ‘adversely affected’ by the decision.” Mo. Bankers, 126 S.W.3d at 364.

Unlike section 370.081.5, however, section 444.850.8 does not confer standing upon anyone merely “claiming” to be adversely affected. It confers standing only upon those who have “an interest which is or may be adversely affected.” In that sense it is not as “open-ended” as section 370.081.5.

The difference in language is small but significant. Under section 444.850.5, CCI cannot obtain standing merely by “claiming to be adversely affected”; CCI can only obtain standing if it has “an interest” that is or may be affected. CCI does not have such an interest here because it currently has no rights — contingent or otherwise — in the leases that are the subject of the LRC permitting process. Instead, CCI currently has pending litigation that may or may not give it an interest in those leases sometime in the future. The current leaseholder and permit holder, Oswego Coal, is not a party to that litigation. Although CCI has obtained a partial consent judgment in the Dean Machinery litigation, that judgment is directed against Midwest Coal, not Oswego. As a general rule, the party seeking relief must have a valid interest when the action commences. See 59 Am.JuR.2d Parties § 37 (2002) (“If a plaintiff at the time of commencing an action has no valid and subsisting title or right to the subject thereof, the plaintiffs subsequent acquisition, or perfection, or a right or title to the subject of the action during the pendency thereof will not remedy the defect so as to enable the plaintiff to maintain the action.”). And where an injury pertains to real property, “the right of action is in the present owner alone, and not in any subsequent purchaser or successor in title.” Id. at § 39.

Because section 444.850.5 specifically requires that the claimant have an interest, we therefore disagree with CCI that Missouri Bankers allows it to assert standing merely by claiming that it will be adversely affected while it attempts to establish that it has an interest in the disputed coal leases.

2. CCI’s status as an economic competitor of Oswego does not give it an interest that is or may be adversely affected

We also disagree with CCI that Missouri Bankers supports its claim to standing based solely upon its status as an economic competitor of Oswego. “Some private rights of basic dimension entitle the person affected by administrative action to judicial review without express statutory sanction.” Cmty. Care Ctrs. v. Mo. Health Facilities Review Comm., 735 S.W.2d 13, 16 (Mo.App. W.D.1987). The “right” to be free from competition is not one of these, however. “Generally speaking, the ‘right’ to be free from legitimate competition is not a right at all and is certainly not one protected by law.” St. Joseph’s Hill Infirmary, Inc. v. Mandl, 682 S.W.2d 821, 824 (Mo.App. E.D.1984). In the case of economic competitor standing, “the right exists only when the legislature has broadened the class of affected parties to include those not otherwise having a constitutionally recognized interest.” Cmty. Care Ctrs., 735 S.W.2d at 16.

For example, a bank has standing as an economic competitor to challenge the grant of a facility application to a competing bank under chapter 362 because chapter 362 expressly requires the director of finance to consider the impact on other banks when evaluating such an application. Bank of Belton v. State Banking Bd., 554 S.W.2d 451, 456-57 (Mo.App.1977). In that context, the General Assembly has demonstrated “a common legislative purpose to maintain the solvency of banks by allowing competitor banks to contest bank expansion whether in the form of a new bank charter or in expansion of service by an existing bank.” Cmty. Care Ctrs., 735 S.W.2d at 15.

On the other hand, a nursing home does not have standing as an economic competitor to challenge the issuance of a certificate of need to a competing nursing home because the governing statute in that case expressly limits standing to the applicant for a permit and the health systems agency within the affected area. Cmty. Care Ctrs., 735 S.W.2d at 14-15. In that context, “the statutory underpinning [for competitor standing] is absent.” Id. at 16. In both contexts, however, “[t]he legislative decision is pivotal.” Id. at 15-16.

In this case, the General Assembly has not specifically granted standing to include economic competitors nor has it specifically limited standing to the permit applicant. Cf. Gold Cross Ambulance, Inc. v. Mo. Dep’t of Health, 866 S.W.2d 473, 475 (Mo.App. W.D.1993). It has granted standing to not just the applicant but to “any person with an interest which is or may be adversely affected who has participated in the administrative proceedings, and who is aggrieved” by the LRC’s decision. § 444.850.8.

The question, therefore, boils down to whether this language can be interpreted to encompass economic competitors. CCI contends that this language is analogous to the language at issue in Missouri Bankers and should likewise be interpreted to afford it standing as an economic competitor here. As noted already, however, the provisions in Missouri Bankers are somewhat different from the provisions in this case. Section 370.081.5 is broader than section 444.850.8 because section 370.081.5 encompasses not just those who have an “interest” but those who merely claim to be adversely affected. As the Missouri Supreme Court said in Missouri Bankers:

This language is open-ended. It is not restricted to an entity that is adversely affected in an immediate and direct manner, such as a credit union whose application is denied. Therefore, it is applicable, instead, to any person or entity that is adversely affected, directly, indirectly and to whatever extent, by the denial or even the approval of a credit union application. A person or entity so affected is entitled to become a party to an appeal to the Commission.

126 S.W.3d at 363-64.

Likewise, section 536.053 is broader than section 444.850.8 because it uses the term “is or may be aggrieved” not only in a temporal sense (now and in the future) but in a substantive sense (among those who “may be aggrieved” by a rule promulgated by a state agency are economic competitors) as well. Id. at 365. While section 444.850.8 similarly refers to an interest that “is or may be affected,” we do not believe that this language compels the same interpretation here as did section 536.053 in Missouri Bankers. As the Missouri Supreme Court pointed out in Missouri Bankers, section 536.053 is accompanied by a companion provision that already confers standing upon persons who may be aggrieved in the future. Id. To have interpreted section 536.053 solely in a temporal sense would have made it “redundant and meaningless” in light of the companion provision, section 536.050. Id. Here, CCI has not directed us to — and we have not found — an analogous companion provision that would make section 444.850.8 similarly redundant and meaningless if interpreted solely in a temporal sense.

Having reviewed the legislative scheme embodied in the SCML, we also find no evidence of a legislative purpose to confer economic competitor standing here. Cf. Legal Communications Corp. v. St. Louis County Printing & Publ’g Co., 24 S.W.3d 744, 747-48 (Mo.App. E.D.2000) (where statute did not expressly determine who had standing to contest administrative action, court would look to purpose of statute to determine if the alleged injury was the type of interest that the statute seeks to protect); Cmty. Care Ctrs., 735 S.W.2d at 15 (characterizing banking cases as ones in which the court examined the pertinent statutory provisions and determined that they “evidence a common legislative purpose to maintain the solvency of banks by allowing competitor banks to contest bank expansion”).

Broadly speaking, the overriding goal of the SCML is to ensure that the state’s energy needs are met through coal mining while minimizing as far as practicable the adverse social, economic, and environmental effects of such mining. See § 444.800.2(l)-(5) (the General Assembly’s findings and declarations on this issue). Thus, the General Assembly has announced that the purpose of the law is to:

(1) Provide such regulation and control of surface coal mining as to minimize or prevent its injurious effects on the people and resources of the state;
(2) Assure that the rights of surface landowners and other persons with a legal interest in the land or appurtenances thereto are fully protected from such operations;
(3) Assure that surface coal mining operations are not conducted where reclamation is not feasible;
(4) Assure that surface coal mining operations are so conducted as to protect the environment;
(5) Assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the surface coal mining operations;
(6) Assure that the coal supply essential to the state’s energy requirements, and to its economic and social well-being is provided and strike a balance between protection of the environment and agricultural productivity and the need for coal as an essential source of energy;
(7) Promote the reclamation of mined areas left without adequate reclamation prior to August 3, 1977, and which continue, in their unreclaimed condition, to substantially degrade the quality of the environment, prevent or damage the beneficial use of land or water resources, or endanger the health or safety of the public;
(8) Assure that appropriate procedures are provided for the public participation in the development, revision, and enforcement of regulations, standards, reclamation plans, or programs.

§ 444.800.3

And to carry out its legislative purpose, the General Assembly has adopted an elaborate permitting system that requires applicants to ensure, among other things, that they will be good stewards of the land and that they will reclaim the land after mining it. See generally §§ 444.815-444.865.

Given the General Assembly’s declared purpose and the accompanying permitting system, we do not believe that section 444.850.8 can be interpreted to confer standing upon CCI solely on the basis of its status as an economic competitor of a permit applicant. Unlike laws that regulate competition in the banking industry, the SCML does not regulate economic competition; it regulates and ameliorates the adverse consequences associated with mining. Cf. Legal Communications Corp., 24 S.W.3d at 748 (although status as competitor was not by itself sufficient to confer standing under statute dealing with requirements for certification to print real estate foreclosure notices, competitor nonetheless had standing in light of policy considerations where statute contemplated system of competitive regulation similar to that existing in the banking industry). The “interest” that the SCML seeks to safeguard from being “adversely affected” is not the interest of economic competitors, but the interest of those affected by the adverse consequences of coal mining operations. Accordingly, we conclude that CCI lacks standing as an economic competitor to challenge the LRC’s permitting decision.

The judgment of the circuit court is affirmed.

LISA WHITE HARDWICK, P.J. and ROBERT G. ULRICH, J. concur.

      . The seventh lease is known as the "Murray Lease.” Midwest Coal evidently assigned this lease to Midwest Resources on October 11, 2000.

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

      . Appellants acknowledge in their reply brief that this court “normally reviews the agency’s decision, rather than that of the circuit court” but explain that the circuit court only addressed the issue of standing and granted the motion to dismiss on that basis and question whether "it is appropriate at this juncture for this Court to review the agency’s decision.” Respondents argue that “[i]t was the Circuit Court, not the Commission, that found that CCI lacked standing under the appropriate judicial review statute” and invoke the general standard for reviewing court-tried cases, which was announced in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

      . That statute has since been amended to confer standing solely upon the applicant. See § 197.335, RSMo (2000).


author: PAUL M. SPINDEN, Judge.

text:
    Howard and Marianne FARNING, Respondents, v. Alvin and Cindy BRENDAL, Appellants.
    No. WD 63641.
    Missouri Court of Appeals, Western District.
    Dec. 14, 2004.

      Jason N. Shaffer, Springfield, Richard Leo Rollings, Jr., Judy R. Ullmann, Cam-denton, for Appellant.
    Christopher Hoberock, Nevada, for Respondent.
   PAUL M. SPINDEN, Judge.

After the vinyl flooring installed by Nevada Carpet Broker and America’s Carpet Gallery in Howard and Marianne Farn-ing’s house in 2001 developed air pockets, the Farnings sued the company’s sole proprietors, Alvin and Cindy Brendal, for breach of warranty. The Brendals had warranted that they would install the vinyl in a workmanlike manner. The circuit court found that the Brendals breached their warranty and awarded $3779.81 and interest to the Farnings. The Brendals appeal, asserting that the circuit court used the incorrect measure of damages. We agree and reverse the circuit court’s judgment.

The Farnings paid a “lump sum price” of $2468.26 in exchange for the Brendals’ promise to provide the vinyl flooring, to remove furniture, appliances and carpeting, to prepare the floor underlayment, and to provide all the labor to install the vinyl flooring. The Brendals gave the Farnings a performance assurance warranty.

Within a few weeks after the flooring had been installed, the vinyl began to bubble. The Brendals attempted unsuccessfully to repair the vinyl. After concluding that the bubbling resulted from gas forming underneath the vinyl and from a clothes dryer that was vented inside the Farnings’ basement, the Brendals refused any additional attempts to repair the flooring.

The Farnings informed the vinyl’s manufacturer of the problem. The manufacturer determined from samples supplied by the Farnings that the bubbling resulted from use of an improper adhesive during installation and agreed to furnish new flooring to the Farnings at no cost. The Farnings hired Tom’s Flooring for $1311.55 to install the replacement flooring.

The Farnings sued the Brendals for breach of warranty. The circuit court awarded the Farnings $3779.81 — the $2468.26 contract price and the $1311.55 paid to Tom’s Flooring. The Brendals appeal.

“In a breach of contract case, the goal in awarding damages is to make an award that will put the non-breaching party in as good a position as he would have been in if the contract had been performed.” Williams v. Hubbard, 789 S.W.2d 810, 812 (Mo.App.1990); see also General Electric Capital Corporation v. Rauch, 970 S.W.2d 348, 359 (Mo.App.1998). The circuit court’s award put the Farnings in a better position than they would have been in had the Brendals installed the flooring as warranted. The award had the effect of giving the Farnings a windfall by giving them new flooring at no cost.

Generally, the proper measure of damages is the difference between the fair market value of the vinyl before and after the installation. Concordia Lumber Company, Inc. v. Davis, 696 S.W.2d 851, 852-53 (Mo.App.1985); Tull v. Housing Authority of City of Columbia, 691 S.W.2d 940, 942 (Mo.App.1985). “An exception to the general rule is the cost of repair test which may be used when the property can be restored to its former condition at a cost less than the diminution in value.” Tull, 691 S.W.2d at 942; Shapiro v. Kravitz, 754 S.W.2d 44, 45 (Mo.App.1988).

The Farnings assert that the flooring had no value in its bubbled condition; therefore, the market value of the project at the time of installation was the contract price of $2468.26 and that the market value of the vinyl after installation was zero. The evidence, however, established that the improperly installed vinyl was replaced and installed at a cost of $1311.55. The cost of repair was less than the diminution in value and was, therefore, the correct measure of damages. Indeed, at oral argument, the Farnings admitted that the cost of repair put them in as good a position as they would have been in had the contract been performed.

To the extent that the Farnings claim that, in addition to the diminution in value damages, they are entitled to the repair costs as incidental or consequential damages, they are wrong. Repair costs are not “incidental” or “consequential” damages. The Farnings do not assert any damages that would constitute incidental or consequential damages. See We-Mac Manufacturing Company v. Mid-State Petroleum Equipment, Inc., 827 S.W.2d 257 (Mo.App.1992); Crank v. Firestone Tire and Rubber Company, 692 S.W.2d 397 (Mo.App.1985).

We, therefore, reverse the circuit court’s judgment and remand with instructions that the circuit court modify its judgment to award $1311.55 to the Farnings.

HAROLD L. LOWENSTEIN, Presiding Judge, and JAMES M. SMART, JR., Judge, concur.

      . Howard Farning and Alvin Brendal testified that a portion of the vinyl installed in the bathroom and foyer was not defective. Alvin Brendal said that the flooring in these areas was worth $1100, but he was not under oath when he provided this information. No other evidence was presented on the value of the unaffected flooring.


author: KENNETH W. SHRUM, Judge.

text:
    Frantine SPEER, Appellant, v. K AND B LEATHER CO. and Division of Employment Security, Respondents.
    No. 26313.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 14, 2004.
    Frantine Speer, pro se.
    Larry R. Ruhmann, St. Louis, for Respondent Missouri Department of Labor and Industrial Relations-Division of Employment Security.
   KENNETH W. SHRUM, Judge.

Frantine Speer (“Claimant”) filed a claim for unemployment benefits with the Missouri Division of Employment Security (“Division”). Division ruled Appellant was ineligible for benefits pursuant to section 288.050.2, because she was “discharged for misconduct connected with work.” Claimant then appealed this decision to the Appeals Tribunal.

After an evidentiary hearing before the Appeals Tribunal, the decision of Division was modified, but Claimant was still denied unemployment benefits. The Appeals Tribunal found that Claimant voluntarily quit without good cause; thus, she was denied unemployment benefits under section 288.050.1(1). Thereon, Appellant filed a timely appeal with the Labor and Industrial Relations Commission (“Commission”). Following Commission’s review, it affirmed the decision of the Appeals Tribunal. The instant appeal followed. This court dismisses the appeal.

Initially, we note that Claimant has filed this appeal pro se. She is fully entitled to proceed pro se. Libberton v. Phillips, 995 S.W.2d 66, 67 (Mo.App.1999). In doing so, however, she is bound “by the same rules of procedure as those admitted to practice law and is entitled to no indulgence she would not have received if represented by counsel.” Johnson v. St. Mary’s Health Center, 738 S.W.2d 534, 535[1] (Mo.App.1987).

As is abundantly clear from a cursory reading, Claimant’s brief shows flagrant violations of most provisions of Rule 84.04. In her statement of facts, there are no page references to either the transcript or legal file, violating Rule 84.04(i). In addition to the statement of facts, Claimant’s points relied on are defective.

As an example, we reproduce her second point:

“The Trial Court Erred in that the claimant had left work involuntarily without good cause attributable, or discharged for misconduct connected with work because of discrimination in that there was a distinction, exclusion or preference made on the basis of cruel and unusual punishment inflicting my human rights in Due process, which had the effect of nullifying or impairing equality of opportunity or treatment in employment.”

We are unsure what to make of this. Her first point is equally incomprehensible.

The points merely assert the ruling or action that is challenged, but wholly fail to state any adequate legal reason for reversible error. Nor do the points explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error. This failure is in direct violation of the plain wording of Rule 84.04(d). “It is not sufficient to merely set out what the alleged errors are without stating why.” Landers v. Huffman, 914 S.W.2d 394, 396[4] (Mo.App.1996).

Perhaps these shortcomings could be overlooked if the argument sections of Claimant’s brief provided any guidance. As in the points, the arguments are incoherent. This court is unsure if Claimant has even challenged the Commission’s findings. She seems to be challenging the finding that she was discharged for misconduct, not that she voluntarily quit, i.e., the Commission’s ruling.

Moreover, the argument sections of the points relied on fail to set forth any standard of review. Rule 84.04(e) provides that “[t]he argument shall also include a concise statement of the applicable standard of review for each claim of error.” Further, the argument sections are devoid of any relevant citations to applicable authority. This justifies a finding that Appellant has abandoned her points. Donovan v. Temporary Help, 54 S.W.3d 718, 720[4] (Mo.App.2001). Finally, we note that the argument sections fail to contain any specific page references to either the transcript or legal file. This violates Rule 84.04(i). “An argument that violates Rule 84.04(i) wholly fads to preserve any error for review.” Cooper v. Bluff City Mobile Home Sales, Inc., 78 S.W.3d 157, 165 (Mo.App.2002).

“A failure to substantially comply with Rule 84.04 preserves nothing for appellate review.” Burton v. Tucker, 937 S.W.2d 775, 776[2] (Mo.App.1997). Allegations of error not properly briefed “shall not be considered in any civil appeal.” Rule 84.13(a).

If this court were to review Claimant’s allegations, we would be acting as an advocate for her. This we will not do. Thummel v. King, 570 S.W.2d 679, 686 (Mo.banc 1978). An appellate court will not supply the deficiencies of an inadequate brief by independent, additional research because to do so would be inherently unfair to the opposition and parties in other cases awaiting disposition on appeal. Id.

Accordingly, we dismiss the appeal.

BARNEY, J., and BATES, C.J. concur.

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

      . All rule references are to Supreme Court Rules (2004), unless stated differently.

      . For instance, her Point II argument refers to a violation of her freedom of speech rights when her employer allegedly told her not to talk to anyone anymore. Setting aside the fact that there is no evidence of this that we could find, Claimant continues her argument by quoting the "Bill of Rights,” the "fourteenth Amendment (1868),” the "Civil Rights Act of 1964,” the "Discrimination (Employment and occupation) convention (ILO NO>lll), 362 U.N.T.S. 31 Article 2,” and the “Preambel[sic] of the United States constitution.” Her only analysis is:
      "Take a look at the both sides of the matter. This is about the unjust rules and threats by the employers and to compensate me for the wrong they put me through. I am set in my ways and am a self sufficient person and they made me lose my self-fulfillment that day. I am not an inferior person, or culpable. Due to the strain of the conditions bestowed upon me, 'I beg your pardon.’ I may not be smart; however I do have dignity. I was not going to go without a set up and I have had to deal with being discarded as useless.”