author: JOSEPH M. ELLIS, Judge.

text:
    K & D AUTO BODY, INC., Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 64400.
    Missouri Court of Appeals, Western District.
    Aug. 16, 2005.

      Mathew E. Hoffman, St. Louis, MO, for appellant.
    Larry R. Ruhmann, St. Louis, MO, for respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

K & D Auto Body, Inc. (“K & D”) appeals a June 16, 2004 Order of the Labor and Industrial Relations Commission of Missouri (“Commission”) affirming the Division of Employment Security’s (“Division’s”) determination that, pursuant to the applicable provisions of Chapter 288 (the Missouri Employment Security Law), several dozen tow truck drivers engaged by K & D were employees of K <& D, not independent contractors, since they performed services for “wages” in “employment” by K & D within the meaning of those terms as defined in sections 288.034.1 and 288.036.1.

Our review of the Commission’s decision is governed by section 288.210, which provides, in relevant part:

The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

Decisions of the Commission “which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding upon us and fall within our province of review and correction.” Merriman v. Ben Gutman Truck Serv., Inc., 392 S.W.2d 292, 297 (Mo.1965) (internal quotation marks omitted). “We independently review such questions without giving any deference to the Commission’s conclusions.” CNW Foods, Inc. v. Davidson, 141 S.W.3d 100, 102 (Mo.App. S.D.2004). Moreover, where the Commission’s “finding of ultimate fact is reached by the application of rules of law instead of by a process of natural reasoning from the facts alone, it is a conclusion of law and subject to our reversal.” Merriman, 392 S.W.2d at 297; see also Baxi v. United Techs. Auto., 956 S.W.2d 340, 343 (Mo.App. E.D.1997). Accordingly, in reviewing the correctness of the Commission’s legal conclusion that, based on the facts found by the Commission, the drivers in question were employees of K & D rather than independent contractors, we exercise our own independent judgment and do not defer to the Commission’s conclusion, including the way in which it arrived at that conclusion by balancing, weighing, and applying the various facts it found.

“The Commission’s factual findings, on the other hand, are treated deferentially.” CNW Foods, 141 S.W.3d at 102; § 288.210. As to such findings, “the reviewing court does not substitute its judgment for that of the [C]ommission[.]” Meniman, 392 S.W.2d at 296. Rather, “[ajbsent fraud, the Commission’s factual findings are conclusive on appeal if they are supported by competent and substantial evidence upon the whole record and are not clearly against the overwhelming weight of the evidence.” CNW Foods, 141 S.W.3d at 102.

The facts of this case as found by the Commission are largely undisputed. K & D, which also does business as M & M Towing, is an employer subject to the Missouri Employment Security Law. It runs a towing service and owns several tow trucks for that purpose. K & D engages various individuals to drive the trucks. These individuals are asked to sign an agreement, which states that the driver is an independent contractor for K & D and that K & D will pay the driver one-third of the total fee or charge for each tow job. The agreement was amended in 2001 to reflect that drivers are responsible for paying up to $1,000 in damages “acquired in [an] accident or wreck be it to [the] truck or other vehicles,” although there was no evidence that any of the drivers had been involved in such an accident since then and actually had to pay those damages. All of the workers involved in this case performed services for K & D as tow truck drivers, and their services were an integral part of K & D’s business.

K & D finds drivers by word of mouth and by newspaper advertisements seeking “commission drivers.” While K & D is licensed to operate throughout the United States and the drivers sometimes work out-of-state, most of the work is performed in Missouri. K & D engages only experienced drivers. If a driver is nevertheless unfamiliar with how to attach certain types of vehicles to the tow truck he or she is driving, K & D provides simple instructions, as it also does regarding safety issues. However, the training and instruction provided by K & D is not significant. Drivers are required to perform their services personally and do not have helpers. K & D provides uniforms, but does not require the drivers to wear them.

K & D provides the chains and the tow trucks themselves, which range in value from $60,000 to $120,000. The drivers are required to provide them own hand tools, such as wrenches and sockets, the value of which ranges from $200 to $400. While K & D provides workers’ compensation coverage to those drivers who do not already have it, the cost of the coverage is recovered from them by reducing their remuneration on a dollar-for-dollar basis.

The drivers perform their services under K & D’s business name, and the tow trucks they drive are marked with K & D’s business name as well. They do not advertise as providing towing services in their own names and do not represent themselves to the public as independent tow truck drivers. Because he regards it as a conflict of interest, K & D’s president, Ron Kuhn, testified that K & D does not engage drivers who are performing towing services for themselves or for other towing companies. However, drivers occasionally repair vehicles apart from providing services to K & D, and when they do so, K & D does not provide them with any additional workers’ compensation coverage.

Under federal Department of Transportation rules, the drivers are required to have commercial drivers’ licenses. The drivers themselves, not K & D, pay the costs for these licenses. Federal Department of Transportation regulations also require K & D to perform random drug tests on the drivers, and the costs of such tests are borne by K & D. Under these regulations, K & D may also require individual drivers to submit to a drug test upon reasonable suspicion, and K & D’s president occasionally requests such drug tests. Usually, the driver in question simply quits rather than submit to the drug test.

In an attempt to match incoming tow requests with a particular driver’s availability, drivers provide K & D’s dispatcher with a list of times they are available, and K & D issues pagers to the drivers. Each driver has the right to refuse any tow job. If a driver refuses a number of such jobs, the dispatcher is less likely to contact that driver when a tow request comes in.

Although federal law provides that Class A tow truck drivers are permitted to work a maximum of ten hours per day and the drivers keep time logs to prove they are in compliance with the law, K & D does not require any of its drivers to work full-time. K & D does not guarantee continued work or a minimum amount of pay to the drivers, who are paid by the job and can suffer a financial loss on a particular job if the tow results in damage.

K & D pays the drivers by check. There is no withholding for Social Security or Medicare taxes or federal or state income taxes, and K & D provides the drivers with a Form 1099-MISC to report their earnings to the Internal Revenue Service (“IRS”). K & D can discharge a driver at any time without incurring liability and a driver can also quit at any time without incurring liability.

K & D also submitted into evidence a July 3, 1996 document indicating that the IRS had performed an investigation of the work relationship between K & D and its drivers for the purpose of determining K & D’s federal employment tax liability. According to this document, the IRS determined that K & D’s drivers are properly classified as independent contractors rather than employees of K & D.

On the facts set forth supra, the Commission concluded that K & D’s drivers were employees of K & D rather than independent contractors. This is the subject of K & D’s sole point on appeal, in which it argues that this conclusion was erroneous as a matter of law.

Section 288.034.5 provides the following “right to control” test for determining whether, under the Missouri Employment Security Law, an individual is an employee or an independent contractor:

Service performed by an individual for remuneration shall be deemed to be employment subject to this law unless it is shown to the satisfaction of the division that such services were performed by an independent contractor. In determining the existence of the independent contractor relationship, the common law of agency right to control shall be applied. The common law of agency right to control test shall include but not be limited to: if the alleged employer retains the right to control the manner and means by which the results are to be accomplished, the individual who performs the service is an employee. If only the results are controlled, the individual performing the service is an independent contractor.

The term “independent contractor” is not defined in the Employment Security Law. However, our Supreme Court has provided the following judicial definition, which is entirely consonant with section 288.034.5: “An ‘independent contractor’ is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, without being subject to the control of his employer, except as to the result of his work.” Vaseleou v. St. Louis Realty & Sec. Co., 344 Mo. 1121, 130 S.W.2d 538, 539 (1939). “Decisions hold without exception that whether the work status is that of employee or independent contractor depends on the facts in a particular case.” Burgess v. NaCom Cable Co., 923 S.W.2d 450, 452 (Mo.App. E.D.1996).

8 CSR 10^4.150(1), which has been in continuous effect since February 11, 1990, and was promulgated by the director of the Division after approval by the director of the Department of Labor and Industrial Relations pursuant to section 288.220.5, further provides, in relevant part:

In order to interpret section 288.034.5, RSMo, effective June 30, 1989, the division shall apply the common law rules applicable in determining the employer-employee relationship under 26 U.S.C., Section 3306(i). In applying the provisions of 26 U.S.C., Section 3306(f) the division shall consider the case law, Internal Revenue Service regulations and Internal Revenue Service letter rulings interpreting and applying that subsection.

As an aid to determining whether a worker is an employee or an independent contractor under the common law rules, the IRS has identified twenty factors to consider in determining whether sufficient control is present to establish an employer-employee relationship. See Rev. Rui. 87-U1, 1987-1 C.B. 296, 1987 WL 419174.

Those factors are: (1) instructions; (2) training; (3) integration; (4) services rendered personally; (5) hiring, supervising, and paying assistants; (6) continuing relationship; (7) set hours of work; (8) full time required; (9) doing work on employer’s premises; (10) order or sequence set; (11) oral or written reports; (12) payment by hour, week, month; (13) payment of business and/or traveling expenses; (14) furnishing of tools and materials; (15) significant investment; (16) realization of profit or loss; (17) working for more than one firm at a time; (18) making service available to general public; (19) right to discharge; and (20) right to terminate.

Nat’l Heritage Enters., Inc. v. Div. of Employment Sec., 164 S.W.3d 160, 167 (Mo.App. W.D.2005). These factors were considered by the Commission in its June 16, 2004 decision (which found that K & D’s drivers were employees of K & D), as well as by the IRS in its July 3, 1996 determination (which found that they were independent contractors).

“Missouri courts routinely apply the twenty-factor test in determining the nature of the employment relationship for purposes of tax liability,” id, and those factors “have been consistently used as an aid for determining whether an individual is an employee or independent contractor under the common law rules[.]” Klausner v. Brockman, 58 S.W.3d 671, 679 (Mo.App. W.D.2001), overruled in part on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 225 (Mo. banc 2003). As we explained in Klausner:

Since Rev. Rui. 87-41 was issued, the factors have always been intended as guides or aids in determining employment status. The factors are not intended to serve as a bright-line rule with no flexibility, but rather they are indices of control to assist the employer in attempting, for tax purposes, to determine the common law employment status of its workers. Not every factor is applicable in every situation, and each case is decided on the basis of its own facts. The degree of importance attached to each factor varies depending on the type of work and individual circumstances, and the relevant factors should be considered in inquiring about employment status with no one factor being decisive.

Id. at 680 (emphasis in original).

Consequently, we must examine the twenty factors in light of the Commission’s factual findings. In our discussion of the factors, the initial paragraph is the descriptive comment quoted directly from IRS Revenue Ruling 87-41. See Quality Med. Transcription v. Woods, 91 S.W.3d 181, 185 (Mo.App. W.D.2002); Fritts v. Williams, 992 S.W.2d 375, 380 (Mo.App. S.D.1999).

Factor 1—Instructions

A worker who is required to comply with other persons’ instructions about when, where, and how he or she is to work is ordinarily an employee. This control factor is present if the person or persons for whom the services are performed have the right to require compliance with instructions.

“With respect to the 'instructions’ factor, the right to control is manifested in control over the ‘when, where and how work is completed.” Kirksville Pub. Co. v. Div. of Employment Sec., 950 S.W.2d 891, 897 (Mo.App. W.D.1997). Here, the inherent nature of towing work, not K&D, dictates the “when” and “where.” Additionally, each tow truck driver engaged by K&D has the right to accept or refuse any tow job when notified of it by K & D’s dispatcher via pager. As to “how,” the Division cites to nothing in the record showing that K&D has either promulgated or requires compliance with any instructions governing the specific manner or methodology by which the drivers are to carry out each tow job. Instead, the record shows that the drivers are instructed merely that a tow job is available and that they are required to fill out a tow sheet detailing “the terms of the tow and the fee charged for the tow” should they accept the job. In other words, K&D has instructional control over the result of the drivers’ towing work, but not over the time, place, or manner in which they perform that work.

The Division claims that K&D has the right to require the drivers’ compliance with its instructions since K&D “can require the drivers to take a random drug test mandated by the Federal Government if the driver’s name comes up for random screening.” However, “reasonable efforts to insure compliance with government regulations do not evidence control ‘unless pervasive control by the employer exceeds to a significant degree the scope of the government imposed control.’ ” Travelers Equities Sales, Inc. v. Div. of Employment Sec., 927 S.W.2d 912, 918 (Mo.App. W.D.1996) (quoting NLRB v. Associated Diamond Cabs, Inc., 702 F.2d 912, 922 (11th Cir.1983)). As the record contains no evidence supporting such a conclusion, we reject this claim. In light of the foregoing, Factor 1 favors independent contractor status.

Factor 2 — Training

Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by requiring the worker to attend meetings, or by using other methods, indicates that the person or persons for whom the services are performed want the services performed in a particular method or manner.

“The ‘training’ factor refers to an experienced worker giving guidance to new workers to demonstrate how the instructions, discussed supra, must be followed.” Kirksville Pub. Co., 950 S.W.2d at 897. K & D engages only skilled, experienced tow truck drivers and relies on their judgment. Thus, it does not train them by requiring experienced employees or other personnel to work with them or by requiring them to attend meetings. The only “training” K & D provides is simple operating instructions, and those are only given if a particular driver is unfamiliar with how to attach certain types of vehicles to the particular tow truck he or she is driving. “Any instruction or training that [K & D] did provide to the [drivers] was de minimis, or went to the result, timely delivery of the [tow services], and was not evidence of [K & D’s] right to control the manner and means of delivery [of tow services] by the [drivers].” Id. at 898. Consequently, although the Division asserts that it is either inapplicable or shows a slight indication of employment, we conclude that Factor 2 favors independent contractor status.

Factor 3 — Integration

Integration of the worker’s services into the business operations generally shows that the worker is subject to direction and control. When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the workers who perform those services must necessarily be subject to a certain amount of control by the owner of the business.

“The integration factor refers to whether a business could continue without the contribution of the services in question; as such, integral services are more likely to be subject to the business’ control.” Nat’l Heritage Enters., 164 S.W.3d at 168. The success and continuation of K & D’s towing business clearly depends, to an appreciable degree, upon the performance of certain services by its drivers. Since those services are also an integral part of K & D’s overall business operations, Factor 3 favors employee status.

Factor ⅛. — Services Rendered Personally

If the services must be rendered personally, presumably the person or persons for whom the services are performed are interested in the methods used to accomplish the work as well as in the results.

Drivers engaged by K & D are required to render their services personally, so Factor 4 favors employee status as well.

Factor 5 — Hiring, Supervising, and Paying Assistants

If the person or persons for whom the services are performed hire, supervise, and pay assistants, that factor generally shows control over the workers on the job. However, if one worker hires, supervises, and pays the other assistants pursuant to a contract under which the worker agrees to provide materials and labor under which the worker is responsible only for the attainment of a result, this factor indicates an independent contractor status.

Although the drivers occasionally arrange for personal friends to accompany them on tow jobs, K & D does not hire, supervise, or pay assistants to help the drivers perform their work and these informal “helpers” are not paid, either by the drivers or K & D. Furthermore, although the written agreement between K & D and the drivers permits them to employ assistants to help them fulfill “any contracts to tow which [the drivers] shall accept in their own name,” there was no evidence that any of the drivers ever actually did so. Consequently, Factor 5 is neutral.

Factor 6 — Continuing Relationship

A continuing relationship between the worker and the person or persons for whom the services are performed indicates that an employer-employee relationship exists. A continuing relationship may exist where work is performed at frequently recurring although irregular intervals.

The Commission did not make a specific factual finding as to this particular factor. The Division nevertheless claims that it favors employee status, noting that according to the field auditor’s worksheets for the calendar year 1999, seven of K & D’s twenty-three drivers were paid more than $19,000, and that in the calendar year 2000, six of K & D’s twenty-two drivers were paid more than $19,000. From this, the Division infers that “[a] number of the [drivers] were apparently employed for the entire audit period.” However, the worksheets also reveal that only seven of the twenty-three drivers who were paid by K & D in 1999 were also paid by K & D in 2000, which suggests that many drivers worked only a short time. Although these numbers seemingly lead to opposite conclusions, in actuality, they reflect a business pattern that is consistent with developing continuing, long-term relationships with a limited number of drivers. They suggest that the seven drivers in 1999 who did a lot of towing business and earned over $19,000 continued on with K & D into 2000 and presumably beyond, but those who did very little business did not stay for an extended time. This is consistent with the evidence that if drivers rejected several tows, K & D’s dispatcher tended not to call them again. Thus, those drivers who regularly accepted dispatches made significantly more money and stayed with the company, while those who rejected assignments or received relatively few earned less and consequently moved on to other opportunities, leading to K & D’s engagement of a new group of drivers. While contemplating regular turnover among a portion of the drivers, this approach is nevertheless designed to build a continuing relationship with a core number of drivers. Accordingly, Factor 6 weighs in favor of employee status.

Factor 7 — Set Hours of Work

The establishment of set hours of work by the person or persons for whom the services are performed is a factor indicating control.

K & D does not mandate any specific time parameters for the drivers, but allows them to set their own work schedules by providing K & D’s dispatcher with a list of times they are available and can be reached via pager, subject only to federal restrictions on the maximum number of hours a day Class A tow truck drivers are permitted to work. Since K & D has not established set hours for the performance of the services provided by the drivers, Factor 7 favors independent contractor status.

Factor 8 — Full Time Required

If the worker must devote substantially full time to the business of the person or persons for whom the services are performed, such person or persons have control over the amount of time the worker spends working and impliedly restrict the worker from doing other gainful work. An independent contractor, on the other hand, is free to work when and for whom he or she chooses.

K & D does not require any of the drivers to work full-time. Moreover, as indicated by the field auditor’s worksheets for calendar years 1999 and 2000, almost half of the drivers engaged by K & D were paid less than $5,000 per year, from which it may be inferred that they did not devote substantially full time to the business of K & D. Accordingly, Factor 8 favors independent contractor status.

Factor 9 — Doing Work on Employer’s Premises

If the work is performed on the premises of the person or persons for whom the services are performed, that factor suggests control over the worker, especially if the work could be done elsewhere. Work done off the premises of the person or persons receiving the services, such as at the office of the worker, indicates some freedom from control. However, this fact by itself does not mean that the worker is not an employee. The importance of this factor depends on the nature of the service involved and the extent to which an employer generally would require that employees perform such services on the employer’s premises. Control over the place of work is indicated when the person or persons for whom the services are performed have the right to compel the worker to travel a designated route, to canvass a territory within a certain time, or to work at specific places as required.

Due to the particular nature of the towing services performed by the drivers, which obviously must be carried out at locations other than K & D’s business premises, this factor is inapplicable.

Factor 10 — Order or Sequence Set

If a worker must perform services in the order or sequence set by the person or persons for whom the services are performed, that factor shows that the worker is not free to follow the worker’s own pattern of work but must follow the established routines and schedules of the person or persons for whom the services are performed. Often, because of the nature of an occupation, the person or persons for whom the services are performed do not set the order of the services or set the order infrequently. It is sufficient to show control, however, if such person or persons retain the right to do so.

The inherent nature of tow truck operations, rather than K & D, dictates the order or sequence of the services performed by the drivers. In other words, after communicating with K & D’s dispatchers, the drivers must travel to the location of the disabled vehicle and then tow the vehicle to the location designated by the customer. However, each driver has the right to refuse any tow job when notified of it by K & D’s dispatcher via pager. This is consistent with independent contractor status, because upon being offered a project, independent contractors are generally “free to accept or reject the offer.” Fritts, 992 S.W.2d at 385. For this reason, Factor 10 favors independent contractor status.

Factor 11 — Oral or Written Reports

A requirement that the worker submit regular or written reports to the person or persons for whom the services are performed indicates a degree of control.

The record demonstrates that the drivers are required to submit to K & D time logs (which must be maintained to prove their compliance with federal law governing the maximum numbers of hours of work they may perform each day) and tow sheets (which detail the terms of the tow and the total fee charged for the tow). The fact that K & D requires the time logs so it can demonstrate compliance with the maximum hours of driving provisions of federal law suggests that it is responsible for the driver’s compliance. If the drivers were independent contractors, K & D would presumably have no responsibility for such compliance. Accordingly, Factor 11 favors employee status.

Factor 12 — Payment by Hour, Week, Month

Payment by the hour, week, or month generally points to an employer-employee relationship, provided that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment made by the job or on a straight commission generally indicates that the worker is an independent contractor.

K & D does not pay drivers by the hour, week, or month, and K & D’s newspaper advertisements expressly sought “commission drivers.” K & D pays its drivers a flat one-third of the total fee or charge for each tow job they perform. Thus, Factor 12 favors independent contractor status.

Factor 13 — Payment of Business and/or Traveling Expenses

If the person or persons for whom the services are performed ordinarily pay the worker’s business and/or traveling expenses, the worker is ordinarily an employee. An employer, to be able to control expenses, generally retains the right to regulate and direct the worker’s business activities.

K & D paid for the liability and related insurance on the trucks. There was conflicting evidence as to whether K & D also paid the truck-related business expenses for fuel, oil, light bulbs and the like. One of the driver agreements introduced by K & D indicates that the drivers would pay those expenses. But Ron Kuhn, K & D’s president, specifically testified that K & D reimbursed drivers for those truck-related expenses. The Commission did not resolve this factual controversy and, therefore, the best that can be said is that Factor 13 is undetermined.

Factor H — Furnishing of Tools and Materials

The fact that the person or persons for whom the services are performed furnish significant tools, materials, and other equipment tends to show the existence of an employer-employee relationship.

K & D owns and furnishes the tow chains and the tow trucks themselves, which range in value from $60,000 to $120,000 per vehicle. Meanwhile, the drivers are required by K & D to provide only their own hand tools, such as wrenches and sockets, the value of which ranges from $200 to $400 per driver and is comparatively insignificant. Factor 14 favors employee status.

Factor 15 — Significant Investment

If the worker invests in facilities that are used by the worker in performing services and are not typically maintained by employees (such as maintenance of an office rented at fair market value from an unrelated party), that factor tends to indicate that the worker is an independent contractor. On the other hand, lack of investment in facilities indicates dependence on the person or persons for whom the services are performed for such facilities and, accordingly, the existence of an employer-employee relationship. Special scrutiny is required with respect to certain types of facilities, such as home offices.

There was no evidence that any of the drivers made any investment in facilities or workspaces for the purpose of performing their jobs. Accordingly, this factor favors employee status. See Nat’l Resort Mart, Inc. v. Hitchcock, 88 S.W.3d 459, 470 (Mo.App. W.D.2002); Stover Delivery Sys., Inc. v. Div. of Employment Sec., 11 S.W.3d 685, 694 (Mo.App. W.D.1999).

Factor 16 — Realization of Profit or Loss

A worker who can realize a profit or suffer a loss as a result of the worker’s services (in addition to the profit or loss ordinarily realized by employees) is generally an independent contractor, but the worker who cannot is an employee. For example, if the worker is subject to a real risk of economic loss due to significant investments or a bona fide liability for expenses, such as salary payments to unrelated employees, that factor indicates that the worker is an independent contractor. The risk that a worker will not receive payment for his or her services, however, is common to both independent contractors and employees and thus does not constitute a sufficient economic risk to support treatment as an independent contractor.

As indicated earlier, none of the drivers have any investment for facilities or otherwise. Therefore, they bear no risk of loss in that regard, and they likewise cannot make an investment profit. Them compensation is limited to one-third of the charge for the tow, less the cost of workers’ compensation insurance if applicable, but the potential for higher or lower income is influenced as much by the number of tow requests in the area serviced by the driver as by his acceptance or rejection of dispatches. While the 2001 modification of the driver agreement purports to make each driver liable for up to $1,000 in damages on a particular job if the tow results in personal or property damage arising out of an accident or wreck, there was no evidence that a driver had ever actually had to pay for damage under this policy. Thus, the only evidence of risk of loss on the part of the drivers was this potential for up to a $1,000 loss in the event of an accident. This can hardly be said to be a “bona fide liability for expenses, such as salary payments to unrelated employees” as contemplated by this factor. Accordingly, Factor 16 leans slightly toward employee status.

Factor 17 — Working for More Than One Firm at a Time

If a worker performs more than de min-imis services for a multiple of unrelated persons or firms at the same time, that factor generally indicates that the worker is an independent contractor. However, a worker who performs services for more than one person may be an employee of each of the persons, especially where such persons are part of the same service arrangement.

There was very little evidence presented by either party regarding this factor, which probably explains why the Commission did not make a specific factual finding relating to it. What scant proof there was (namely, that the drivers occasionally repair vehicles apart from providing services to K & D and that K & D had “priority” on their work time) is conflicting. Therefore, we consider Factor 17 as being neutral.

Factor 18■ — Making Service Available to General Public

The fact that a worker makes his or her services available to the general public on a regular and consistent basis indicates an independent contractor relationship.

The drivers perform their services under K & D’s business name, and the tow trucks they drive are marked with K & D’s business name as well. Although the written agreement between K & D and the drivers permits them to “solicit a towing contract on [their] own behalf and in [their] own name[s],” they do not advertise as providing towing services in their own names and do not represent themselves to the public as independent tow truck drivers. Furthermore, K & D provides uniforms (though the drivers need not wear them) and does not engage drivers who are also performing towing services for themselves or for other towing companies. Thus, Factor 18 favors employee status.

Factor 19 — Right to Discharge

The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes the worker to obey the employer’s instructions. An independent contractor, on the other hand, cannot be fired so long as the independent contractor produces a result that meets the contract specifications.

As K & D can discharge a driver at any time without incurring liability, including liability for breach of contract, Factor 19 favors employee status.

Factor 20 — Right to Terminate

If the worker has the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employer-employee relationship.

Since a driver can terminate his or her work relationship with K & D at any time without incurring any financial liability, for breach of contract or otherwise, Factor 20 favors employee status.

To summarize, of the twenty factors set forth in Revenue Ruling 87-41, ten are indicative of employee status, while six suggest independent contractor status and four are either neutral, inapplicable, or undetermined. Our analysis does not stop here, though, because the twenty factors discussed supra are simply “guides or aids in determining the nature of the employment relationship, and are not the only factors to consider.” Nat’l Heritage Enters., 164 S.W.3d at 167.

Two such additional factors, which were set forth by the United States Supreme Court in Community for Creative NonViolence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989), are “(1) the provision of employee benefits, and (2) the tax treatment of the hired party.” Fritts, 992 S.W.2d at 385 (citing Reid, 490 U.S. at 751-52, 109 S.Ct. at 2178-79). As the Commission did not make a finding as to whether K & D provided the drivers typical employee benefits such as health insurance, paid vacations, or a retirement plan, the first additional factor identified in Reid is undetermined. As to the “tax treatment” factor mentioned in Reid, the Commission concluded only that it was “not bound” by the IRS’ July 3, 1996 determination that K & D’s drivers were properly classified as independent contractors rather than employees of K & D. This conclusion was entirely correct, since section 288.215.2 provides:

Any finding of fact, conclusion of law, judgment or order made by an arbitrator, commissioner, commission, administrative law judge, judge or any other person or body with authority to make findings of fact or law in any proceeding not brought under this chapter shall not be binding or conclusive on an appeals tribunal or the labor and industrial relations commission in any subsequent or separate proceeding brought under this chapter, regardless of whether the prior action was between the same or related parties or involved the same facts.

As this court very recently held in Higgins v. Missouri Division of Employment Security, 167 S.W.3d 275, 281 (Mo.App. W.D., 2005), section 288.215.2 “reflects a legislative intent to prohibit proceedings outside the Missouri Employment Security Law from having a binding effect upon the Commission.” However, that the findings of fact, conclusions of law, judgments, or orders entered in such independent proceedings are not binding or conclusive upon the Commission or the Division’s Appeals Tribunal does not mean they are to be or must be entirely ignored. See, e.g., Nat’l Sch. of Aeronautics, Inc. v. Div. of Employment Sec., 226 S.W.2d 93, 97 (Mo.App. W.D.1950) (“While such a decision is by no means binding on us, yet it may be noticed in this case.”)

As did the Commission, we find the 1996 IRS determination that K & D’s drivers were independent contractors to be of little significance in the case sub judice. The IRS determination was for tax years long prior to the tax years covered by the Commission’s 2004 Order, and there was no specific evidence presented to the Commission as to whether K & D’s business, employment, and/or tax practices had remained the same or changed appreciably during the intervening years. Thus, it is impossible to tell with any degree of confidence whether a comparison would be apples to apples, or apples to oranges. Since there was no additional evidence to “fill in the blanks,” the best that can be said is that although the IRS found K & D to be using independent contractors in prior years, no legitimate inference can be drawn that it would so find for the tax years in question here. Consequently, we can only conclude that this factor is also undetermined.

Since neither of these additional factors support either independent contractor or employee status, we are left to a great extent with the weight to be attributed to each of the applicable twenty factors discussed supra. Numerically, a relatively large majority of those factors (ten) favor employee status, whereas a smaller number (six) suggest independent contractor status. But as noted previously, our decision does not rest on a simple numerical count of the factors. Travelers Equities Sales, 927 S.W.2d at 925.

The Commission correctly noted the particular significance of K & D providing the drivers with trucks that cost $60,000 to $120,000 to use in performing the tows, citing Hinton v. Bohling Van & Storage Co., 796 S.W.2d 87, 90 (Mo.App. E.D.1990), for the proposition that ownership of the trucks results in an inference of the right to control. The late Professor Arthur Larson, in his exhaustive and encyclopedic treatise on workers’ compensation law and related legal issues, similarly notes that “[w]hen the employer furnishes valuable equipment, the relationship is almost invariably that of employment.” 3 Arthur Laeson & Lex K. Laeson, Larson’s Workers’ Compensation Law § 61.07[1], at 61-18 (2005). Professor Larson then goes on to explain the rationale for the rule as follows:

When it is the employer who furnishes the equipment, the inference of right of control is a matter of common sense and business. The owner of a $10,000 truck who entrusts it to a driver is naturally going to dictate details such as speed, maintenance, and the like, in order to protect his or her investment. Moreover, since there is capital tied up in this piece of equipment, the owner will also want to ensure that it is kept as productive and busy as possible. For these reasons, it is not surprising that there seems to be no case on record in which the employer owned the truck but the driver was held to be an independent contractor.

Id. § 61.07[2], at 61-19.

While not conclusive, K & D’s practice of supplying equipment with very substantial value (and providing insurance coverage thereon) is a factor that must be given considerable weight in evaluating the right to control issue. So, too, are the factors such as integration; rendering services personally; continuing relationships; lack of investment; and the right to terminate without liability, among the various other factors favoring employee status. Overall, we conclude that the greater weight and importance of the factors addressed herein support the Commission’s legal conclusion that K <& D’s drivers were employees under the statutory test of section 288.034.5.

Accordingly, the decision of the Labor and Industrial Relations Commission is affirmed.

All concur.

      . All statutory references are to RSMo 2000.

      . In Reid, the question before the Court was whether a party hired to produce copyrighted work was an employee under the general common law of agency. 490 U.S. at 732, 741, 109 S.Ct. at 2168-69, 2173.

      . Section 288.215.2 was enacted in 1988. However, long before then, the appellate courts of this state had already reached similar conclusions. See, e.g., Trianon Hotel Co. v. Keitel, 350 Mo. 1041, 169 S.W.2d 891, 896 (1943) (holding that IRS “departmental rulings are not necessarily controlling”); A.J. Meyer & Co. v. Unemployment Comp. Comm’n, 348 Mo. 147, 152 S.W.2d 184, 190 (1941) (noting, with regard to a conflicting federal Treasury Department ruling, that "[o]ur unemployment compensation act is not circumscribed by the federal act”); Beal v. Indus. Comm’n, 535 S.W.2d 450, 461 (Mo.App. W.D. 1975) (holding that United States Treasury Department "rulings are not binding on the court in a determination whether [an individual] is an employee within the meaning of the Missouri Employment Security Law.”)


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Stephen D. CHANERL, Appellant, v. Ronald BATTELLE, Respondent.
    No. ED 84901.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 6, 2005.
    Stephen D. Chanerl, St. Louis pro se.
    Robert C. Moore, Asst. County Counsel- or, St. Louis, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Stephen D. Chanerl, (“Chanerl”) filed an application to acquire a concealable firearm that was denied on April, 11, 2004. A criminal record check revealed that Chan-erl was found guilty of unlawful use of a weapon, Section 571.030, in Cole County, Missouri in 1985. Chanerl also has two felony arrests on his record that do not yet have final dispositions. The unlawful use of a weapon conviction and the two felony arrests without final dispositions were the bases for the Respondent’s denial of Chan-erl’s permit. Chanerl appealed the denial in small claims court pursuant to Section 571.090.9 and was granted the permit. St. Louis County Chief of Police Ronald Battelle filed for trial de novo. The Honorable Stephen R. Mitchell denied the permit. Chanerl appealed. We find no error and affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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

      . All statutory references are at RSMo.2004 unless otherwise indicated.


text:
    STATE of Missouri, Appellant, v. Daniel P. MILLER, Respondent.
    No. ED 84815.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 6, 2005.
    Maleaner Harvey, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Daniel Miller (“Defendant”) was indicted by a grand jury on the charges of statutory rape (Count I) in violation of Section 566.032, and two counts of child molestation (Counts II and III) in violation of Section 566.067. On March 24, 2004, the jury returned verdicts of guilty of statutory rape on Count I and child molestation in the first degree on Count II. The jury found him not guilty of child molestation in the first degree on Count III. The court sentenced Defendant as a persistent offender to serve a term of thirty years on Count I and fifteen years on Count II, to run consecutively. This appeal followed.

Defendant raises two points on appeal. First, he contends the trial court erred in denying his motions for judgment of acquittal at the close of all evidence on Count I because the State failed to prove beyond a reasonable doubt that Mr. Miller had sexual intercourse with A.P., a ten-year-old girl. Second, he claims that the trial court erred in denying his motion for acquittal at the close of all evidence on Count II because the State failed to prove beyond a reasonable doubt that he had sexual contact with A.P. We find no error and affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. No jurisprudential purpose would be served by a -written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25.

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


author: LAWRENCE E. MOONEY, Judge.

text:
    Deborah ARGUIN, Appellant, v. Bruno ARGUIN, Respondent.
    No. ED 85434.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 6, 2005.

      Karen M. Pittman, Rochelle Thomas-Benke, St. Louis, MO, for appellant.
    Mason Klippel, St. Louis, MO, for respondent.
   LAWRENCE E. MOONEY, Judge.

In this dissolution action, the wife, Deborah Arguin, appeals from the trial court’s judgment setting aside an earlier default judgment dissolving her marriage to husband Bruno Arguin. The wife alleges the trial court lacked jurisdiction to enter its judgment setting aside the default judgment, as more than ninety days had elapsed from the date that husband had filed his motion to set aside. We agree and dismiss the appeal.

Factual and Procedural Background

Deborah Arguin filed for the dissolution of her marriage to Bruno Arguin. After a hearing on March 25, 2004, the trial court entered a judgment pending dissolution, ordering husband to pay attorney’s fees and maintenance to wife. In May of 2004, the wife moved to strike husband’s pleadings because he had not made any payments to her or her attorney, in violation of the court’s order, and because he had not produced any releases regarding his bank records. The wife’s motion to strike was called, heard, and sustained by consent on May 20th. The trial court, in its consent order and judgment, struck the husband’s pleadings, and granted a default and inquiry. The consent order and judgment further provided that a hearing would be permitted after thirty days unless the husband fully complied with the earlier judgment pending dissolution by becoming current on all maintenance and attorney fees, and by delivering all releases to the wife’s attorneys. The husband failed to comply, and a hearing was held on June 29th. At its conclusion, the court entered judgment dissolving the marriage between husband and wife. The court also specifically found that the husband remained in default.

Twenty-nine days later, on July 28, 2004, husband filed a motion to set aside the court’s June 29th default judgment. On November 4, 2004, ninety-nine days after husband had filed his motion, the trial court entered judgment sustaining the husband’s motion and setting aside the June 29th default judgment. Wife now appeals, contending the trial court lacked jurisdiction to enter its judgment of November 4, 2004.

Discussion

A party is entitled to file a motion to set aside a default judgment within a reasonable time for a period of up to one year. Rule 74.05(d); Popular Leasing USA, Inc. v. Universal Art Corp. of New York, 57 S.W.3d 875, 877 (Mo.App. E.D.2001). When such a motion is filed after the default judgment becomes final, it is treated as an independent proceeding, separate and apart from the underlying judgment itself. Popular, 57 S.W.3d at 878. When, however, such a motion is filed within thirty days of the default judgment, it is treated as an “authorized after-trial motion” and is deemed the equivalent of a motion for new trial. Popular, 57 S.W.3d at 877; Klaus v. Shelby, 4 S.W.3d 635, 637 (Mo.App. E.D.1999). As such, the motion extends the trial court’s control over the default judgment from thirty days to ninety days from the day the motion is filed. Popular, 57 S.W.3d at 877; Klaus, 4 S.W.3d at 637. At the end of the ninety-day period, any “authorized after-trial motion” not ruled upon is automatically denied. Klaus, 4 S.W.3d at 637-8; Budd v. Budd, 157 S.W.3d 229, 230 (Mo.App. E.D.2004).

In this case, the husband filed his motion to set aside on July 28, 2004. Husband’s filing came 'within thirty days of the entry of the June default judgment. Therefore, husband’s motion is treated as an “authorized after-trial motion,” and the court’s control over its June 29th judgment extended to ninety days from the date husband filed his motion — -until October 26th. As the trial court did not rule on husband’s motion within this ninety-day period, husband’s motion was automatically denied on October 26, 2004. As a result, the trial court did not have jurisdiction on November 4, 2004 to enter its judgment setting aside the June 29, 2004 default judgment. Budd, 157 S.W.3d at 230. Accordingly, the trial court’s November 4, 2004 judgment setting aside the default judgment is void for lack of jurisdiction, and the appeal is dismissed.

GLEN A. NORTON, C.J., and PATRICIA L. COHEN, J., concur.

      . The wife’s motion for leave to supplement the legal file is denied.


text:
    In the Interest of B.S., a minor.
    No. ED 85533.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 6, 2005.
    Laura E. Sidel, St. Louis, MO, for appellant.
    Barbara L. Greenberg, Clayton, MO, for respondent.
    Before GLENN A. NORTON, C.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Elliott Smith appeals from a trial court judgment terminating his parental rights to his minor child, B.S., pursuant to Section 211.447, RSMo 2000. We have reviewed the briefs of the parties and the record on appeal and conclude that the judgment of the trial court is supported by substantial evidence, is not against the weight of the evidence, nor does it erroneously declare or apply the law. In the Interest of F.N.M., 951 S.W.2d 702, 703 (Mo.App. E.D.1997). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    Debbie BANTHER, Plaintiff-Appellant, v. Dr. Steven M. DREW, Defendant-Respondent.
    No. 26466.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 12, 2005.

      Eric M. Belk and Brad Bradshaw, Springfield, MO, for appellant.
    David E. Overby and Kent 0. Hyde, Hyde, Love & Overby, LLP, Springfield, MO, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Debbie Banther (“Plaintiff’) appeals from a judgment entered on a jury verdict in favor of Dr. Steven M. Drew (“Defendant”), a practicing physician, in an action for the wrongful death of her twenty-two-year-old daughter, April Banther (“April”). Plaintiff contends that the trial court erred in refusing to give a verdict directing instruction offered by her. We agree and reverse the judgment.

At approximately 10:45 p.m., January 24, 2001, April went to the Aurora Community Hospital’s Emergency Room in Aurora, Missouri, where she reported to the triage nurse that she had shortness of breath and had been coughing for a least a week. Defendant saw April shortly after midnight, at which time he reviewed the triage nurse’s assessment and talked with her about her symptoms including the fact that she was not coughing anything up. Defendant listened to both her lungs and found that she had some wheezing, but nothing he considered alarming. Defendant decided that April did not have the usual symptomatology of pneumonia, such as fever, labored respiration, or a productive cough. He did not order any tests that would rule out pneumonia as a cause for April’s distress and diagnosed her with asthmatic bronchitis. Defendant ordered a breathing treatment for April, which resulted in a significant improvement of her air flow, and as a result further convinced Defendant that she had asthmatic bronchitis. After April told Defendant that she felt better and could breathe easier he instructed a nurse to discharge her with a four ounce bottle of Robitussin AC, with a prescription for an additional four ounces if needed, and a medium-dose inhaler with Albuterol together with instructions on their use.

Plaintiff, with whom April lived, awoke around 7:00 a.m. that morning and found April sitting up in a chair because she was having trouble breathing lying down. April told her that she had been to the emergency room during the night and was diagnosed with a viral infection. Plaintiff and April decided to drive to Marshall, Missouri, later that afternoon. On the way back to Aurora April found that she could not eat and breathe at the same time. When they arrived in Aurora Plaintiff took April to the emergency room because her condition had worsened to the extent she could hardly move and breathe at the same time. She was seen by Dr. Andelin, who within an hour ran a CBC (common blood count) test, chest x-ray and blood gases and decided that she needed to be transferred to St. John’s Hospital in Springfield, Missouri, in case she needed to be put on a mechanical ventilator.

April was treated at the St. John’s Emergency Room in the late evening of January 25, 2001, where she was considered to be in need of critical care and was referred to Dr. Donald K. Wantuck (“Dr. Wantuck”), a pulmonologist. Dr. Wantuck found that April had exceptional breathing problems, some of which were related to the nature of her illness and some related to her physical status. April was 5'2" tall, weighed 250 pounds, and was a smoker, which led to “a lot of impairment of her mechanical breathing apparatus.” After a battery of tests and treatment, Dr. Wan-tuck diagnosed April with “bilateral pneumonia of undetermined origin.” April died on January 27, 2001.

Plaintiffs only point relied on is that the trial court erred in not giving her tendered verdict director, Instruction C, which read:

Your verdict must be for [Plaintiff] if you believe:
First [Plaintiff] was the natural mother of the deceased, [April], and
Second, either:
Defendant failed to order a chest x-ray of [April] on the January 24, 2001 emergency room admission, or
Defendant failed to order a CBC (complete blood count) of [April] on the January 24, 2001 emergency room admission, or
Defendant failed to prescribe antibiotics to [April] on the January 24, 2001 emergency room admission, and
Third, Defendant, in any one or more of the respects submitted in paragraph Second was thereby negligent, and
Fourth, such negligence directly caused or directly contributed to cause the death of [April],

At the outset we note that Plaintiff has failed to supply this court with the actual verdict director that was given to the jury at trial. Ordinarily this failure would make it difficult for an appellate court to consider an instructional challenge. However, from the record before us, we gather that the instruction given allowed the jury to find for Plaintiff if they were to determine that Defendant negligently failed to order either a chest x-ray or CBC of April during her January 24, 2001, visit to the emergency room. Instruction C, however, would have allowed the jury to render a verdict in favor of Plaintiff if either of the above were found, or if they found he negligently failed to prescribe antibiotics.

The sole issue in this appeal is whether there was enough evidence at trial to support the submission of Plaintiffs claim that Defendant was negligent in failing to administer antibiotics upon April’s January 24, 2001, visit to the emergency room. Plaintiff asserts that the testimony elicited from her expert witnesses provided the basis for giving this instruction. We agree.

To make a prima facie case for medical malpractice, “plaintiffs must prove that defendants failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendants’ profession and that their negligent act or acts caused plaintiffs’ injury.” Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo. banc 1995). Whether an issue has been sufficiently proven at trial to be submitted to the jury “is a legal question and not an exercise of judicial discretion.” Deckard v. O’Reilly Automotive, Inc., 31 S.W.3d 6, 18 (Mo.App. W.D.2000) (overruled in part on other grounds). In order for a claim to be properly submitted to the jury “each fact essential to liability” must be “predicated upon legal and substantial evidence.” Id. at 18.

When considering whether a sub-missible case has been made all the evidence is to be construed in the light most favorable to the plaintiff. Hiers v. Lemley, 834 S.W.2d 729, 732 (Mo. banc 1992); Ladish v. Gordon, 879 S.W.2d 623, 627-628 (Mo.App. W.D.1994). Appellate courts are to give the “plaintiff the benefit of all favorable evidence and reasonable inferences” drawn therefrom, to the exclusion of all contrary evidence. Ladish, 879 S.W.2d at 627-628. Furthermore, in cases involving disjunctive instructions each alternative claim of negligence must be able to stand alone and there must be sufficient evidence to support each allegation. Id. at 628.

In the instant case although Plaintiff called two experts, Dr. Dale Kesl’s (“Dr. Kesl”) testimony was sufficient to show that the Defendant breached his duty of care by not administering antibiotics and that breach caused or contributed to April’s death.

At the outset of his testimony Dr. Kesl stated that his opinion would be based on a reasonable degree of medical certainty; that his opinions would be based on facts and data of the type reasonably relied on by experts in the field of emergency medicine and the diagnosis and treatment of lung conditions; and that references to “improper health care” would mean “[flailing to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the [Defendant's profession.” Dr. Kesl then gave the following testimony about the level of care April received on January 24, 2001:

Q. Based upon your training and experience and your review of the medical records, x-rays, depositions, do you have an opinion as to whether the health care provided to April on January 24th by [Defendant] was improper or not?
A. Yes, I do.
Q. And what is your opinion?
A. I feel that the standard of care was not met.
Q. What are the main things that stand out in your mind, the main things that were improper?
A. Patient received a clinical evaluation but received no laboratory testing to absolutely rule out the possibility of significant pneumonia. The— there was no chest x-ray; there was no laboratory; there was no antibiotics prescribed, (emphasis added).

Shortly thereafter Dr. Kesl explained that his diagnosis, based upon the Defendant’s examination of April as well as other information available to him on the night of January 24, 2001, would have been “more of a bronchial pneumonia or pneumonia on the right side”; rather than bronchitis as Defendant diagnosed.

On cross-examination Dr. Kesl made his opinion explicit as he stated that even without a positive result on the chest x-ray, he would have prescribed antibiotics:

Q. Now, do you believe that she should have been sent home with oral antibiotics or put in the hospital on IV antibiotics?
A. I think if I would have initially seen that patient and I would have had a negative chest x-ray, because I would have done the chest x-ray, I would have sent her home on the minimum of an oral antibiotic in the macrobiotic class. The one I would have chosen would be Zithro-max, as well as the puffer, and I would not have given a codeine cough suppressant. I would have given a cough suppressant, but I would have probably used either just plain Robitussin or Robitussin DM. (emphasis added).

Dr. Kesl also explained that Defendant’s failure to administer antibiotics directly caused or contributed to April’s death:

Q. If we go back to April’s condition again, and the problems she had when it progressed, when she first had these things on the 24th do you have an opinion as to whether or not, if the proper care had been given, that is the failures had not been done, if she would have had a chest x-ray, she would have had the CBC or — I’m sorry — or she would have been given antibiotics or any of those things, do you believe more probably than not she would have lived or not?
A. Yes.
Q. And you believe that if the appropriate things would have been done, she would have more probably than not have lived rather than died from this condition?
A. Yes. Young people with community-acquired pneumonias are very survivable.
Q. Do you believe that she had a bacterial pneumonia or not? What is your impression on that?
A. I believe it’s bacterial.

In order for Instruction C to have been supported, the Plaintiff must have presented evidence of the “essential facts”; which in this case are those facts that would have shown that Defendant failed to act with the requisite level of medical care by not administering antibiotics to April on January 24, 2001, and that failure caused or contributed to April’s death. See Deckard, 31 S.W.3d at 18; see also Ladish, 879 S.W.2d at 628. Enough evidence must be placed before the jury so that they are not left to mere “speculation, conjecture and surmise” in connecting the facts at hand with the claims upon which the plaintiff seeks relief. Ladish, 879 S.W.2d at 628; Cowan v. Perryman, 740 S.W.2d 303, 304 (Mo.App. S.D.1987). “Substantial evidence is that evidence which, if true, is probative of the issues and from which the jury can decide the case.” McCrackin v. Plummber, 103 S.W.3d 178, 181 (Mo.App. W.D.2003) (quoting Butts v. Express Personnel Servs., 73 S.W.3d 825, 839 (Mo.App. S.D.2002)). Here Dr. Kesl’s testimony, when considered in the light most favorable to Plaintiff, constituted substantial evidence that Defendant violated the applicable standard of care and that it caused or contributed to April’s death.

Defendant alleges that the evidence tended to show that Defendant could only be negligent for failing to administer antibiotics if he had first diagnosed or suspected pneumonia. Therefore, he argues, if Defendant was not negligent in failing to diagnosis pneumonia, i.e. failing to conduct a chest x-ray or a CBC, he could not have been negligent for failing to administer antibiotics. That thesis is contrary to Dr. Kesl’s testimony. He stated that even if he had gotten negative results from a chest x-ray of April, Defendant still should have given her antibiotics. Viewed in a light most favorable to Plaintiff, the evidence tends to show that Defendant had a duty to administer antibiotics based upon the information he had available to him on January 24, 2001, regardless of whether he had conducted any further testing.

Dr. Kesl also provided substantial evidence that Defendant’s failure to administer antibiotics caused or contributed to April’s death. He opined that had April been prescribed or given antibiotics, a chest x-ray or a complete blood count on January, 24 2001, she would have probably lived. While this was the only testimony from Dr. Kesl as to causation, it was enough to constitute “substantial” evidence. See McCrackin, 103 S.W.3d at 181; Ladish, 879 S.W.2d at 628.

It is not for this court to pass on the credibility of the evidence, but rather to assess whether there was “substantial evidence” as to the claim Plaintiff sought to submit to the jury. McCrackin, 103 S.W.3d at 181. “Substantial” does not necessarily mean quantity or even quality, it simply means that the evidence relied on must be probative of the issues it was offered to prove. Id. While the evidence concerning antibiotics was not overwhelming, that which was presented tended to prove that Defendant had a duty to administer antibiotics to April regardless of whether he conducted a CBC or a chest x-ray, that he did not do so, and that this omission caused or contributed to April’s death.

After taking all Plaintiffs evidence as true and drawing all reasonable inferences from such in favor of Plaintiff, the testimony that was put before the jury was probative of the “essential facts” necessary to support giving Instruction C to the jury. Accordingly we reverse the judgment and remand for further proceedings.

PREWITT and RAHMEYER, JJ., concur.

      . Defendant also argues that we should dismiss this appeal because Plaintiff's brief does not comply with Rule 84.04, Missouri Rules of Civil Procedure (2004). While Plaintiff may not have submitted a model brief, Defendant was able to identify the issues on appeal and file a response that addressed those issues. As such we decline Defendant’s invitation to dismiss for violation of Rule 84.04.

      . We note that "the individualized practice or custom of a physician does not constitute the appropriate standard of care.” Allen v. Grebe, 950 S.W.2d 563, 568 (Mo.App. S.D.1997). There is no issue on this appeal concerning Dr. Kesl's testimony about what he would have done. Additionally, he began his testimony by explaining that all his opinions were going to be based upon facts and data of the type relied on. by experts in the fields of emergency medicine and the diagnosis and treatment of lung conditions. Thus, taken in context of his overall testimony we do not believe he was testifying as to his own personal, subjective beliefs; rather he was expressing his objective opinion as to what other doctors would have done under the same or similar circumstances. See Id.

      . “To make a prima facie showing of causation, the plaintiff must show the defendant’s negligent conduct more probably than not was a cause of the injury.” Nisbet v. Bucher, 949 S.W.2d 111, 115 (Mo.App. E.D.1997).


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    In re the MARRIAGE OF Stephanie LeGALL and Jean B. LeGall. Stephanie LeGall, Petitioner-Respondent, v. Jean B. LeGall, Respondent-Appellant.
    No. 26607.
    Missouri Court of Appeals, Southern District.
    Sept. 12, 2005.

      Christopher A. Hazelrigg, Springfield, MO, for Appellant.
    James L. Thomas, Waynesville, MO, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Jean B. LeGall (“Father”) appeals from the judgment dissolving his two-year marriage to Stephanie LeGall (“Mother”). The demise of the marriage also saw a family plagued with infidelities on both sides, foreclosure on the marital home, repossession of a family car, credit card indebtedness of over $50,000.00 for consumer goods, and the birth of two children under the age of two. In addition, each parent has two children from previous marriages. With limited information provided at trial, the trial court attempted to award to each his or her nonmarital property, divide the marital property and debts, award custody and visitation, and order child support. Father raises four points on appeal, which appear to challenge each of these rulings. We find that two of Father’s points have merit, reverse and remand as to those two points, and affirm the remainder of the judgment of dissolution.

This Court must affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. In re Marriage of Holden, 81 S.W.3d 217, 220 (Mo.App. S.D.2002). “The judgment may be set aside as being against the weight of the evidence only with caution and a firm belief it is wrong.” Id. “We defer to the trial court’s determination of witness credibility, as the judge is in the better position to view sincerity, character, and other intangibles not apparent in the record on appeal.” Id.

We shall address Father’s points as we discern them to be. Appellant’s first point claims error in awarding “property” to Mother because the evidence clearly showed it was nonmarital property belonging to Father. In his argument, Father claims this nonmarital property to be a Sony television, entertainment center, and master bedroom set, which had been acquired prior to the marriage; in support, he points to a credit card statement in the amount of $1,026.37, showing items purchased at Best Buy in April 2000, almost an entire year before commencement of their marriage. The trial court did award Father a 62" television as his sole and separate property; however, this television does not appear to be the television claimed as nonmarital in this appeal. Although Father’s testimony at trial supports his claim as to the date of purchase of something at Best Buy ten months prior to the marriage, Father also testified he still owed money on the entertainment center and the master bedroom set.

Mother contends her Statement of Property and her testimony at trial demonstrated that this property was marital. Mother’s testimony was less than clear:

[Father’s counsel]: Now, there is a 62-inch television in your possession; is that correct?
[Mother]: Yes, sir.
[Father’s counsel]: When was that purchased?
[Mother]: I don’t know the exact date.
[Father’s counsel]: It was purchased prior to the marriage; is that correct?
[Mother]: I want to say it was purchased after our marriage.
[Father’s counsel]: How about the 48-inch television?
[Mother]: That was purchased while we were — I think while we were married.
[Father’s counsel]: Now—
[Mother]: I’m not certain.
[Father’s counsel]: In regard to that, there’s a master bedroom set; is that correct?
[Mother]: Yes, there is.
[Father’s counsel]: There’s money owed on that; isn’t that correct?
[Mother]: I don’t know.
[Father’s counsel]: Is there an entertainment center?
[Mother]: Yes.
[Father’s counsel]: And there’s money owed on that, isn’t there?
[Mother]: I don’t know.

It is apparent that neither party provided the court with how much of the charges for the master bedroom suite, television, or entertainment center had been paid during the marriage. Likewise, it is not even clear which television was awarded to Wife. However, it is clear that up until the dissolution of marriage, the payments for the disputed items were still outstanding. “Under the ‘source of funds’ rule applied in Missouri, property is considered to be acquired as it is paid for....” Moore v. Moore, 111 S.W.Sd 530, 535 (Mo.App. S.D.2003) (quoting Alexander v. Alexander, 956 S.W.2d 957, 961 (Mo.App. W.D.1997)). We, therefore, do not find any trial court error in the designation of the entertainment center, the television set in the entertainment center, and the master bedroom suite as marital property. We cannot convict the trial court of error in the record presented to the trial court and to this Court. Point I is denied.

In Point II, Father appears to challenge the distribution of property, specifically, the award of all the parties’ debt to Father. Father does not give a breakdown of the total award of property but merely argues that he was ordered to pay $54,000.00 in credit card debt, which does not include any deficiencies on the foreclosed and repossessed property. Mother counters that the award of debt was fair because she was not awarded maintenance. Although a brief review of the parties’ property statements of debts indicates substantial debts, Father has failed to develop his point. A point relied on must not only state the legal reason for a claim of error, but the point must also provide why, in the context of the case, that legal reason supports its claim of error. Carmack v. Carmack, 148 S.W.3d 321, 322 (Mo.App. S.D.2004). Neither this Court, nor the trial court, was given the information concerning the indebtedness prior to the marriage, the indebtedness incurred during the marriage, and which party incurred the indebtedness. Based on the record before us, we cannot find that the award of debts was against the weight of the evidence. Point II is denied.

In Point III Father claims:

The Trial Court erred to the prejudice of the Appellant by making a finding that Respondent shall be the “primary” physical custodian of the minor children, as this erroneously applied the law, as both Appellant and Respondent shall be designated as the joint physical custodians of the minor children.

Father’s argument consists of two paragraphs:

In Malawey v. Malawey, 137 S.W.3d. [sic] 518 (Mo.App.2004), the court held that the trial court erred by awarding a parent “primary” physical custody of the children. In addition, Section 452.375 RSMo is void of any language authorizing the award of “primary” physical custody to either parent.
The trial court in this case clearly awarded the Respondent “primary” physical custody of the minor children in the court ordered Parenting Plan. (Lf.80). Error has occurred and the Judgment should be reversed so that both parties shall be designated with joint physical custody of the children.

The trial court did not have the benefit of recent supreme court decisions regarding the designation of a “primary physical custodian.” See Speer v. Colon, 155 S.W.3d 60, 62 (Mo. banc 2005) (holding that “... Missouri’s statutory scheme does not allow for an order granting ‘primary physical custody.’ ”). Because we are remanding for a recalculation of child support as set forth infra, we shall remand to the trial court to designate the parties as joint legal and physical custodians. The trial court made no findings indicating that joint custody was inappropriate and, in fact, ordered joint legal custody. Point III is granted; on remand, the parties should be designated joint legal and physical custodians.

In Point IV, Father contends the trial court erred in awarding $1,244.00 as child support because the Form 14 is not supported by the actual gross income of Father. It is not clear how the trial court arrived at the amount for child support because there is not a Form 14 attached to the judgment and decree. The amount of income attributable to Father was a hotly contested issue during the trial. The testimony indicated Father had worked three jobs at one time, up to 100 hours per week, in an attempt to get out of the huge indebtedness of this marriage; however, he was unable to maintain that schedule. It clearly would be unreasonable for a court to expect Father to work one hundred hours per week, but it appears from points provided in Mother’s argument that the court may have indeed attributed income from all three jobs to Father. Again, the parties were less than clear in the written record as to how many hours and how much income Father could earn working reasonable hours, keeping in mind the public policy of this State that Father have adequate time to visit with his children. Compounding the problems in this dissolution is the fact that Father is also in the Army reserves and required to drill and travel for officer’s training school. Testimony indicates Father’s second job is an hourly job with no benefits, including no vacation or sick leave, and the salary in Father’s first job abates should he be put on active status in the military. From the record before us, we cannot find the award of child support to be supported by substantial evidence.

We, therefore, reverse the award of child support and remand for a calculation of an appropriate amount of child support. The judgment is reversed as to the award of primary physical custody and child support; in all other respects, the judgment is affirmed.

PREWITT, P.J., and PARRISH, J., concur.

      . At the end of the trial, the judge stated that he thought both Mother and Father had lied to him about various issues, including support payments, affairs, and income.

      . We say “appear to challenge” because arguably each of the points on appeal is defective.

      . In fact, at trial Mother did not request maintenance; however, the trial court inexplicably ordered that all payments from Father to Mother for a division of any of the "marital” property be secured by real estate in Florida, owned by father prior to the marriage, and that "Said money to [Mother] is in lieu of periodic maintenance and it is the Courts [sic] intent that such money award not be discharged in Bankruptcy by [Father].”

      . It is not even clear if the trial court accepted one of the Form 14s offered by a party or composed its own.


text:
    Virgil Kenneth LAIR, Jr., Appellant, v. Carolyn LAIR, Respondent.
    No. WD 64356.
    Missouri Court of Appeals, Western District.
    Sept. 13, 2005.

      Richard A. Koehler, Butler, MO, for appellant.
    Eric M. Landoll, Nevada, MO, John R. Irvin, Butler, MO, for respondent.
    Before SMART, P.J., HOLLIGER and HARDWICK, JJ.
   ORDER

PER CURIAM.

Virgil Lair appeals from the marital dissolution judgment awarding $600 in monthly maintenance to Carolyn Lair. Upon review of the parties’ briefs and the record, we find no error and affirm the judgment. We have provided the parties with a memorandum explaining the reasons for our decision, because a published opinion would have no precedential value. Rule 84.16(b).


author: VICTOR C. HOWARD, Presiding Judge.

text:
    John A. THOMAS, Respondent, v. Patricia A. THOMAS, Appellant.
    No. WD 64727.
    Missouri Court of Appeals, Western District.
    Sept. 13, 2005.
    David H. Cook, Independence, MO, for respondent.
    Thomas J. Walsh and J. Michael Joy, Lee’s Summit, MO, for appellant.
    Before HOWARD, P.J., SMITH, C.J., and NEWTON, J.
   VICTOR C. HOWARD, Presiding Judge.

Patricia A. Thomas (“Wife”) appeals from the trial court’s judgment modifying John A. Thomas’ (“Husband”) maintenance obligation. Wife raises four points on appeal in her challenge to the trial court’s modification of maintenance. Because Wife’s first point on appeal is dispositive, we do not address her remaining points. As explained below, we find that the trial court lacked statutory authority to modify maintenance without written agreement of the parties. Thus, the judgment modifying maintenance is reversed.

Background

Husband and Wife were married on May 27, 1961. Twenty-six years later, the Circuit Court of Jackson County entered a Decree of Dissolution dissolving the marriage. The Decree of Dissolution found the parties’ Separation Agreement “not unconscionable” and explicitly incorporated its terms, which included a provision that Husband would pay Wife maintenance in the amount of $400 per month until such time as Wife died or remarried. The Separation Agreement also included a provision stating that its terms “may not be altered, changed or modified except in a writing signed by each of the parties.”

In 1993, Husband moved to terminate or modify maintenance. On June 5, 1995, after oral stipulation by the parties to an agreed-upon modification, the trial court entered a Modification Judgment reducing Husband’s maintenance obligation to $325 per month effective June 1,1995.

Five years later, Husband filed another motion to terminate or modify maintenance, which initiated the proceedings at issue in this appeal. In Wife’s answer and counter motion to modify, Wife alleged in part that the maintenance obligation was non-modifiable without the parties’ written agreement. In September of 2002, just before trial, Wife filed a motion to dismiss Husband’s Motion to Modify. Wife alleged that the trial court lacked jurisdiction to modify maintenance. Husband filed suggestions in opposition to the motion to dismiss.

On September 23, 2002, a hearing was held on Husband’s motion to modify. Pri- or to receiving evidence, the trial court announced that Wife’s motion to dismiss would be taken with the case. Husband’s current wife, Laurie Thomas, testified in length concerning the substantial change in Husband’s circumstances resulting from his seizure disorder. Wife testified concerning her continuing need for maintenance. After hearing the evidence, the trial court asked for Husband’s response to Wife’s motion to dismiss within ten days and took the case under advisement.

On June 14, 2004, the trial court entered its judgment overruling Wife’s motion to dismiss and reducing Husband’s maintenance obligation from $325 per month to $200 per month, retroactive to the date of service, October 26, 2000. This appeal follows.

Standard of Review

We will sustain the trial court’s judgment modifying maintenance “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); Lombardo v. Lombardo, 120 S.W.3d 232, 237-38 (Mo.App. W.D.2003).

Modifiability of Maintenance

In her first point on appeal, Wife argues that the trial court erroneously declared and applied the law. Wife claims that the trial court had no authority to modify maintenance, in that the parties’ separation agreement incorporated into the Decree of Dissolution prohibited modification of any of its provisions except upon written agreement by the parties. Husband responds that the stipulated maintenance award set forth in the June 5, 1995, Modification Judgment was fully modifiable because it contained no language precluding modification.

Section 452.325.1, RSMo 1986, provides in relevant part that “[t]o promote the amicable settlement of disputes between the parties to a marriage attendant upon them separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for the maintenance of either of them.” There is no dispute that the parties’ 1987 Separation Agreement provided that Husband was to pay Wife $400 per month in maintenance until her death or remarriage. The Separation Agreement further provided, “[t]his Agreement may not be altered, changed or modified except in a writing signed by each of the parties.” In the Decree of Dissolution incorporating that agreement, the trial court expressly found that the agreement was “not unconscionable” and ordered the parties to perform its terms. § 452.325.4(1) RSMo 1986. As in Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 391-92 (Mo. banc 2001), “[t]he maintenance provision at issue is best defined as separation agreement de-cretal maintenance, ... [which] is modifiable, unless the parties specifically agree to preclude or limit modification.”

Husband and Wife specifically agreed to preclude modification of the maintenance provision except upon their written agreement. In accordance with section 452.325.6, RSMo 1986, the trial court’s incorporation of the Settlement Agreement into the 1987 Decree of Dissolution “was sufficient to ‘expressly preclude modification of terms set forth in the decree,’ ” including the separation agreement decre-tal maintenance provision. Id. at 392; see also Davis v. Davis, 687 S.W.2d 699, 701-02 (Mo.App. E.D.1985) (discussing the three types of maintenance awards in dissolution decrees granted after January 1, 1974, as governed by the Dissolution of Marriage Act, sections 452.300-452.415, RSMo 1978, and finding that “when the parties expressly agree to preclude modification of maintenance and the court incorporates that agreement into the decree, the agreement is binding on the court”); and Mason v. Mason, 873 S.W.2d 631, 635 (Mo.App. E.D.1994) (discussing the fact that “[a] nonmodifiable agreement which the court found was conscionable at the time of its execution does not suddenly become unenforceable due to changed circumstances. Accordingly, absent mutual consent, a party cannot later try to selectively repudiate sections of the agreement. Once a nonmodifiable agreement is executed, it constitutes a binding legal obligation.”).

Husband moved to modify his maintenance obligation in 1993. In 1995, Husband and Wife entered into a stipulation that Husband’s maintenance obligation would be downward modified from $400 to $325 per month. The trial court entered a modification judgment memorializing the parties’ agreement on June 5, 1995. Specifically, the modification judgment provides that “[t]he cause was submitted to the Court upon verified Petition of [Husband] and proof. Oral stipulation was made before the court and acknowledged by the parties at the time of said hearing May 4, 1995.” The judgment continues that Husband and Wife, through their respective counsels, entered into a Stipulation for Modification, by which the parties agreed “that a substantial change in circumstances of a continuing and permanent nature, necessitating a reduction in the monthly maintenance amount paid by [Husband] to [Wife], has occurred.” Thus, the Modification Judgment indicates that Husband and Wife “agreed to a reduction in the previously ordered maintenance from the sum of $400 to the sum of $325, effective June 1, 1995.” After entering its judgment according to the stipulation, the trial court “FURTHER ORDERED, ADJUDGED, AND DECREED that any portions of the previous Decree of Dissolution of Marriage dated June 12, 1987, not affected by this Modification Judgment shall remain in full force and effect.” The signatures of both Husband and Wife’s counsel appear in the judgment under the heading “APPROVED AS TO FORM.”

The key issue in this case involves what effect the June 5, 1995, Modification Judgment had on the modifiability of the separation agreement decretal maintenance.

Wife argues that the express language of the Modification Judgment that all portions of the 1987 Decree of Dissolution not affected by the Modification Judgment remained “in full force and effect” reinforces that the non-modifiability of the separation agreement decretal maintenance continues except upon written agreement of the parties. Wife claims that the Modification Judgment did not grant the trial court any additional jurisdiction to further modify maintenance in the future.

Husband argues that their oral stipulation, which was reduced to writing in the form of a Modification Judgment approved as to form by both Wife’s counsel and Husband’s counsel, constituted a written modification of the previous maintenance provision. Citing Lueckenotte, 34 S.W.3d at 392, and Cates, 819 S.W.2d at 738, Husband contends that, pursuant to section 452.335.3, RSMo 1994, in effect at the time the 1995 Modification Judgment was entered, post-1988 judgments must contain language expressly precluding modification if such is the intent of the parties. Husband claims that because the Modification Judgment did not contain any language or provision expressly limiting subsequent modification or termination of maintenance, the trial court could further modify maintenance.

However, as this court held in Haynes v. Almuttar, 25 S.W.3d 667, 674 (Mo.App. W.D.2000), the statutory requirement in section 452.335.3, RSMo 1994, that a court state whether the judgment is modifiable or non-modifiable “ ‘applies only to maintenance awards which the court initially orders pursuant to a marriage dissolution decree.’ ” (quoting Gerecke v. Gerecke, 954 S.W.2d 665, 670 (Mo.App. S.D.1997)). A trial court is “without statutory authority to designate its judgment non-modifiable with respect to [a] maintenance modification.” Id. Thus, the trial court had no authority to designate the maintenance modifiable or non-modifiable in the 1995 Modification Judgment. Husband’s argument that the lack of such a statement in the Modification Judgment renders the maintenance modifiable is without merit.

Here, through their counsel, the parties made an oral stipulation, which both Husband and Wife acknowledged in open court, that they had agreed to a modification of the separation decretal maintenance. Their stipulation was reduced to a written Modification Judgment in a form approved by parties’ counsel and is binding as a written agreement for modification of maintenance, which was permissible under the terms of their 1987 Separation Agreement. See Rapp v. Rapp, 619 S.W.2d 788, 790 (Mo.App.E.D. 1981) (explaining, “[an] oral stipulation for compromise and settlement made in open court in the presence of [the parties] and preserved in the record of the trial court [is] as binding as a written agreement”). Husband and Wife agreed only to a reduction in the amount of Husband’s maintenance obligation. The modification portion of the 1987 Separation Agreement incorporated in the Decree of Dissolution was not affected and, therefore, remained “in full force and effect.” Thus, the provision of the parties’ Separation Agreement incorporated into the Decree of Dissolution that precluded modification of its terms except upon Husband and Wife’s written agreement remained binding upon the trial court following its entry of the 1995 Modification Judgment.

Section 452.370.1, RSMo 2000, grants the trial court statutory authority to modify maintenance. That statutory authority is limited by the introductory language, “[e]xcept as otherwise provided in subsection 6 of section 452.325.” Husband and Wife’s preclusion of modification except upon written agreement in their Separation Agreement incorporated into the 1987 Decree of Dissolution is the “as otherwise provided” or the exception to the trial court’s statutory authority to modify maintenance. Because the trial court lacked statutory authority to enter its June 14, 2004, judgment modifying maintenance, that judgment is reversed.

SMITH, C.J., and NEWTON, J., concur.

      . The modification judgment is dated May 26, 1995, but was not deemed entered until filed on June 5, 1995. Rule 74.01(a).

      . Husband also testified briefly. Although he remembered some details of his original maintenance obligation and the 1995 modification of maintenance, due to his medical condition, he was either unable to remember or unable to understand other financial matters he was questioned about.

      .The judgment further ordered that (1) Husband shall receive a credit in the amount of $5,125 for the difference in payments of $325 made from October 26, 2000, to April 1, 2004; (2) Wife will receive no award of attorney’s fees or travel expenses; and (3) the costs of the action were assessed to Husband.

      . Wife incorrectly categorizes the maintenance as "contractual.” “Contractual maintenance ... arises where the 'maintenance provisions were not to be incorporated into the decree.’ ” Cates v. Cates, 819 S.W.2d 731, 737 (Mo. banc 1991) (quoting Ebinger v. Berry, 622 S.W.2d 394, 396 (Mo.App. E.D.1981)). See also Barbeau v. Barbeau, 72 S.W.3d 227, 229 (Mo.App. E.D.2002) (explaining, "[i]n order to create contractual maintenance, the parties must expressly agree that the maintenance terms are not to be incorporated into the dissolution decree”). Here, the maintenance provisions were expressly incorporated into the 1987 Decree of Dissolution.

      . At one point in his argument, Husband refers to the modification provision of the Separation Agreement as "boiler-plate language.” Although he does not further advance an argument that he was unaware that he was agreeing to long term, non-modifiable maintenance, we note that just as in Mason v. Mason, 873 S.W.2d 631, 635 (Mo.App. E.D. 1994), “[t]he boiler-plate language exception [to the rule that absent a showing of fraud, a party who is capable of reading and understanding a contract is charged with the knowledge of that which he signs] is inapplicable under the facts in this case since both parties were represented by attorneys and the nonmodification clause was in clear, unambiguous, easy-to-read type.”

      . Lueckenotte acknowledged the 1988 amendment to the relevant statutes "by adding the requirement that the ‘maintenance order state if it is modifiable or non-modifiable.’ Sec. 452.335.3.” 34 S.W.3d at 392. However, the court held that "the 1988 amendment did not and, indeed, could not operate retrospectively on rights established by an Agreement and judgment entered prior to enactment of the amendment,” so "[u]nder the law at the time of the Agreement and judgment incorporating the Agreement, the maintenance provision was non-modifiable, notwithstanding the absence of a separate maintenance order to that effect.” Id.

      . It is unclear from the record whether the modifiability of maintenance was challenged in the previous modification proceeding. As explained below, the proceedings resulted in the parties’ agreement for modification, which complied with the modification provision of their Separation Agreement.