text:
    John C. BROWN and Pam K. Heitman, Respondents, v. Joseph H. BROWN, Appellant.
    No. WD 63547.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.

      Patrick M. Cuezze, Kansas City, MO, for appellant.
    L. Clay Barton, Oak Grove, MO, for respondents.
    Before RONALD R. HOLLIGER, Presiding Judge, PATRICIA BRECKENRIDGE, Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Appellant Joseph H. Brown (“Joseph” or “Appellant”) appeals a judgment of the Cireuit Court of Lafayette County, Missouri, imposing a constructive trust on certain Lafayette County real estate in favor of Respondents, John C. Brown and Pamela K. Heitman (“John” and “Pam” or “Respondents”). Appellant raises three points of trial court error. In his first two points, he contends that the trial court erred when it imposed the trust because a constructive trust is only proper if there has been a showing of actual or constructive fraud, and because a showing of unjust enrichment alone is legally insufficient to support the imposition of such a trust. In his third point, he argues that the trial court erred in imposing a constructive trust since Respondents failed to meet their burden of proof at trial to establish facts giving rise to such a trust by clear, cogent, and convincing evidence. We vacate the trial court’s judgment but remand for entry of a new judgment in favor of Respondents.

As in other court-tried matters, this court will affirm the judgment of the trial court “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Fix v. Fix, 847 S.W.2d 762, 765 (Mo. banc 1993). “When the trial court has received conflicting evidence, appellate courts should review the facts in the light most favorable to the trial court’s order.” In the Interest of M.E.W., 729 S.W.2d 194, 196 (Mo. banc 1987). Appellate courts also defer to the trial court’s credibility determinations, “because it is in a better position to not only judge the credibility of witnesses directly, but also their sincerity and character as well as other trial intangibles which may not be completely revealed by the record.” Tichenor v. Yore, 953 S.W.2d 171, 174 (Mo.App. S.D.1997); Rule 84..13(d)(2). However, “[qjuestions of law are matters reserved for de novo review by the appellate court, and we therefore give no deference to the trial court’s judgment in such matters.” H & B Masonry Co. v. Davis, 32 S.W.3d 120, 124 (Mo.App. E.D.2000).

The subject of the lawsuit is approximately twenty acres of rural real estate, on which a modular home, a cabin (improvements to which had been made by John and Pam), a nine-acre lake, and a single-wide trailer are present. The land, which is located about five miles west of Odessa, Missouri, was originally purchased in February 1966 by Catherine and her husband, Edward Brown. There were four children of the marriage: John, Pam, Joseph, and Carolyn. When Edward Brown died on June 24, 1988, his interest in the real estate devolved to Catherine, who became the sole record title owner of the property. By warranty deed dated June 12, 1989, Catherine granted the land to Catherine and her son John as joint tenants with right of survivorship. This deed was recorded on June 14, 1989, in Book 705, Pages 312-313. On October 16, 1997, Catherine executed another warranty deed transferring title to her remaining interest in the land to Catherine and her daughter Pam as joint tenants with right of survivorship. This deed was recorded on February 12,1998.

John testified that some time in 1999, he and his mother decided that Pam should be properly added as a third joint tenant with right of survivorship. On August 23, 1999, after John had made an appointment for the three of them to confer with a lawyer, they visited the 'Independence, Missouri, law office of Joyce B. Kerber, an attorney, bringing with them a copy of the 1989 and 1997 warranty deeds. Kerber testified that the three asked her to prepare appropriate instruments that would leave the property titled in the names of Catherine, John, and Pam as joint tenants with right of survivorship, and there was similar testimony from John and Pam. According to Kerber, the idea was to “undo the previous warranty deeds and get it all back in Catherine’s name so she could make a deed placing both John and Pam on [the deed] as joint tenants with right of survivorship with her.” Since Catherine was elderly (78 years old) and in failing health, prior to preparing any documents Kerber met with Catherine out of the presence of John and Pam and questioned her closely to confirm her wishes and to ensure that she was competent and not being subjected to undue influence. Neither John nor Pam spoke to Kerber while Catherine was not also present.

After the meeting of August 23, 1999, Kerber prepared three quitclaim deeds. The first was a quitclaim deed conveying John’s interest in the land to Catherine. The second transferred Pam’s interest in the land to Catherine, and the third deeded Catherine’s interest in the land to Catherine, John, and Pam as joint tenants with right of survivorship. Kerber testified that the first two quitclaim deeds were prepared with the intention of clearing up the prior and conflicting warranty deeds executed by Catherine so the property could then properly be conveyed, via the third quitclaim deed, to Catherine, John, and Pam as joint tenants with right of survivorship. Kerber also prepared a will and a durable power of attorney for Catherine.

On September 30, 1999, Catherine and Pam returned to Kerber’s office, where Pam executed the second quitclaim deed and Catherine executed the third quitclaim deed, as well as a will. John was not able to visit Kerber’s office that day, and subsequently executed the first quitclaim deed on November 1, 1999. After the three quitclaim deeds had been signed, Kerber forwarded them to the office of the Lafayette County Recorder of Deeds for recor-dation. Kerber’s intention was that the third quitclaim deed be recorded last, so that the property would ultimately be titled in the names of Catherine, John, and Pam as joint tenants with right of surviv-orship, just as they had requested during their visit on August 23, 1999. Kerber further testified that although it was her usual practice to do so, she did not recall whether she gave instructions to the recorder as to the intended order of recordation.

As misfortune would have it, on November 4, 1999, the Recorder of Deeds recorded the deeds in the reverse order of that intended by Kerber, Catherine, John, and Pam. That is to say, the third quitclaim deed (from Catherine to the three parties jointly) was recorded first, followed by the other two quitclaim deeds (from John to Catherine and from Pam to Catherine) very shortly thereafter. The third quitclaim deed was recorded in Book 867 at Page 1140, while the other two quitclaim deeds were recorded in Book 867 at Pages 1141 and 1142. Unbeknownst to John and Pam, the result of the order of the filing of the deeds was that Catherine held the property in fee simple absolute, leaving them no interest in the property whatsoever.

On April 3, 2002, Catherine granted a durable power of attorney to Joseph and Carolyn. The same day, Catherine executed a beneficiary deed purporting to convey the property, upon her death, to each of her four children (Joseph, Carolyn, John, and Pam) as joint tenants with right of survivorship. This deed was recorded on April 8, 2002, in Book 927 at Pages 872-873. Considered in conjunction with the effect of the prior quitclaim deeds (including the order in which they were recorded), this would have left John and Pam with one-fourth interests in the property on Catherine’s death, rather than one-half interests (assuming, of course, they survived Catherine).

Shortly thereafter, John and Pam discovered what had happened. When Catherine subsequently refused to rectify the mistake by altering or revoking the beneficiary deed, their relationship with her deteriorated. On June 12, 2002, John and Pam filed the present action, seeking a variety of equitable relief, including the imposition of a constructive trust and the cancellation of the beneficiary deed, to rectify the mistake made by Kerber and/or the Lafayette County Recorder of Deeds.

A one-day trial took place on September 26, 2003. On October 24, 2003, the trial court issued its judgment, in which it found, “by clear, cogent, and convincing evidence,” that “the agreement, intent, and purpose of all the parties in the execution of’ the first, second, and third quitclaim deeds “was to ultimately place title in said real estate in Catherine Brown, John Brown and Pam K. Heitman, as joint tenants with right of survivorship.” The court further found that the quitclaim deeds were recorded in the wrong sequence “through no fault of the parties” and, as a result of this mistake, Catherine “was left as sole owner of said real estate, contrary to the intention of the parties.” After noting that the beneficiary deed of April 3, 2002 “would result in Plaintiffs having less ownership than as set forth” in the third quitclaim deed dated September 30, 1999, the trial court concluded that “equity requires that a constructive trust be imposed to place the parties’ ownership as intended by the [third] Quit Claim Deed and to avoid Plaintiffs being defrauded of their interest in the real estate and Defendant being unjustly enriched[.]” The court then revested title to the property in Catherine, John, and Pam as joint tenants with right of survivorship and ordered Catherine to execute a deed consistent therewith. This timely appeal followed.

Appellant advances three points relied on, which we will address out of their original order. Before we do, though, we offer the following observations regarding constructive trusts.

Technically, constructive trusts are not trusts at all, but equitable devices employed by courts of equity. Schultz v. Schultz, 637 S.W.2d 1, 4 (Mo. banc 1982). They arise “by operation of law, or, more accurately, by construction of the court, regardless and independently of any actual or presumed intention of the parties to create a trust[.]” Id. (internal quotation marks omitted). “The constructive trust may be defined as the device used by chancery to compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs.” Kerber v. Rowe, 348 Mo. 1125, 156 S.W.2d 925, 927 (Mo.1941) (internal quotation marks omitted). “In a constructive trust the beneficial interest in the property is from the beginning in the person who has been wronged. The constructive trust arises from the situation in which he is entitled to the remedy of restitution, and it arises as soon as that situation is created.” Page v. Joplin Nat’l Bank & Trust Co., 363 Mo. 1008, 255 S.W.2d 821, 824 (1953) (internal quotation marks and emphasis omitted).

Thus a court of equity may impose or declare a constructive trust to provide a remedy in cases where one who “ ‘has acquired property under such circumstances as make it inequitable for him to retain it’ ” by making him or her a trustee for the person or persons injured thereby. Schultz, 637 S.W.2d at 4. In doing so, the court merely uses the machinery of a trust as a remedial device, even though the actual mechanism used to do so is, in strict contemplation of the law, not a trust. Id. “One of the most frequently quoted statements is Mr. Justice Cardozo’s: ‘A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.’ ” Lucas v. Cent. Mo. Trust Co., 350 Mo. 593, 166 S.W.2d 1053, 1058 (1942) (quoting Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378, 380 (1919)).

Turning now to Appellant’s points on appeal, we first address his second point, in which he claims the trial court erred in imposing a constructive trust since a showing of unjust enrichment alone is legally insufficient to support the imposition of such a trust. In particular, he asserts that “[d]espite confusion in the case law, unjust enrichment of one party, absent a showing of actual or constructive fraud, is insufficient to invoke a constructive trust.” We disagree.

“ ‘Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.’ ” Straube v. Bowling Green Gas Co., 360 Mo. 132, 227 S.W.2d 666, 671 (1950) (quoting Hummel v. Hummel, 133 Ohio St. 520, 14 N.E.2d 923, 927 (1938)). The appellate courts of this state have often recognized the doctrine of unjust enrichment as a valid basis for the imposition of a constructive trust under § 160 of the Restatement (First) of Restitution (1937), which states, at 640-41: “Where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it, a constructive trust arises.” See Wallach v. Joseph, 420 S.W.2d 289, 295 (Mo.1967); Lucas, 166 S.W.2d at 1057; Skidmore v. Back, 512 S.W.2d 223, 230-31 (Mo.App. S.D.1974). Accordingly, Missouri courts have long held that “a constructive trust is an equitable device to prevent injustice, particularly unjust enrichment.” Cohn v. Jefferson Sav. & Loan Ass’n, 349 S.W.2d 854, 858 (Mo.1961). Indeed, in most cases,

the object and purpose of a court of equity in imposing a constructive trust is ‘to restore to plaintiff property of which he has been unjustly deprived and to take from the defendant property the retention of which by him would result in a corresponding unjust enrichment of the defendant; in other words the effect is to prevent a loss to the plaintiff and a corresponding gain to the defendant, and to put each of them in [the] position in which he was before the defendant acquired the property.’

Suhre v. Busch, 343 Mo. 679,123 S.W.2d 8, 16 (1938) (quoting Restatement (First) of Restitution § 160 cmt. d at 643 (1937)). Point denied.

In his Point I, Appellant contends the trial court erred in imposing a constructive trust since a constructive trust is only proper if there has been a showing of actual or constructive fraud, a breach of a confidential or fiduciary relationship, undue influence, or some other form of wrongful or tortious conduct by the defendant. “Without a showing of actual or constructive fraud,” he argues, the trial court “lacked equitable powers to impose a constructive trust.”

Again, we disagree. While it is certainly true that a constructive trust may arise in such cases, it is not true that a constructive trust may arise only under those circumstances. For example, as noted by our Supreme Court in Estate of Bean v. Hazel, 972 S.W.2d 290 (Mo. banc 1998), “ ‘[tjhere are numerous situations in which a constructive trust is imposed in the absence of fraud.’ ” Id. at 292 (quoting V Austin Wakeman Scott & William Franklin Fratcher, The Law of Trusts § 462 at 303 (4th ed.1989)). Likewise, “[a] finding of a fiduciary, or confidential, relationship is not always a prerequisite to ... imposing a constructive trust. There are numerous other circumstances in which Missouri courts have imposed a constructive trust.” Fix, 847 S.W.2d at 766. Finally, it has also been held that “[t]he remedy [of a constructive trust] is not confined to instances where undue influence is alleged.” Parker v. Parker, 971 S.W.2d 878, 882 (Mo.App. E.D.1998).

In particular, “where the retention of the property would result in the unjust enrichment of the person retaining it,” a constructive trust arises “even though the acquisition of the property was not wrongful.” Scott & Fratcher, supra, § 462.2 at 314. In Cole v. Morris, 409 S.W.2d 668 (Mo.1966), for example, an injured employee collected benefits from the second injury fund as a result of an auto accident while on the job. Id. at 669. He subsequently recovered damages from a third-party tortfeasor. Id. While the statutes did not recognize a subrogation right of the custodian of the second injury fund (the State Treasurer) to recover the money paid to the injured worker, id. at 669-70, the Missouri Supreme Court imposed a constructive trust in favor of the treasurer so that the employee would not be unjustly enriched by collecting money from two sources for the same injury. Id. at 670-71. “Cole thus holds that a constructive trust is warranted even though the person who was unjustly enriched did nothing wrong in a legal sense.” Shelter Mut. Ins. Co. v. Dir. of Revenue, 107 S.W.3d 919, 927 (Mo. banc 2003) (Wolff, J., concurring in part and dissenting in part). See also Wilber v. Wilber, 312 S.W.2d 86, 91 (Mo.1958); Hoefel v. Hoefel, 533 S.W.2d 704, 709 (Mo.App. E.D.1976).

Thus contrary to Appellant’s argument, it is not necessary that the unjustly enriched party be found to have engaged in legal wrongdoing or have had wrongful or malicious intent. Rather, the touchstone for imposition of a constructive trust is injustice or unfairness, which may take the form or be the product of fraud (actual or constructive), abuse of a fiduciary or confidential relationship, undue influence, or unjust enrichment. This is entirely consistent with not only the express holdings in the cases we have just discussed, but also other Missouri Supreme Court precedent indicating that the constructive trust is a fluid, flexible device which may be employed to remedy many different types of injustice. As the Court observed more than forty years ago, “in decreeing or refusing to decree a constructive trust the court is not bound by an unyielding formula. The equities of the situation must shape the measure of the relief, if any.” Durwood v. Dubinsky, 361 S.W.2d 779, 790 (Mo.1962). “The forms and varieties of constructive trusts are practically without limit,” Musser v. Gen. Realty Co., 313 S.W.2d 5, 9 (Mo.1958), and “no exhaustive catalog can be made of the types of wrongful retention of property which have moved chancery to decree a constructive trust. Wherever equity finds such a wrongful holding, it will give relief, whether the type of injustice be new or old.” Wier v. Kansas City, 356 Mo. 882, 204 S.W.2d 268, 270 (1947).

In further support of his first point, Appellant also argues that mistake is insufficient to justify the imposition of a constructive trust inasmuch as it is “axiomatic that mistake does not constitute fraud.” Appellant is incorrect, as “a constructive trust arises where the title to property is acquired through a mistake[.]” Scott & FRAtcheR, supra, § 462.2 at 314-15. “Just as transfers based on misrepresentation are subject to attack and avoidance by the wronged party, so equity regards many types of mistake as grounds for setting aside conveyances and restoring the property to the grantor. One method of accomplishing such restoration is that of declaring the grantee who has obtained his title under a mistake to be a constructive trustee for the grantor.” George Gleason Bogert & George Tayloh Bogert, The Law of Trusts and Trustees § 474 at 93 (rev.2d ed. (1978)) (emphasis in original). That is to say, “where property is conveyed by mistake, the grantee is chargeable as a constructive trustee and can be compelled to reconvey the property,” Scott & FratcheR, supra, § 466 at 343, since the grantee’s “[rjetention of the property after discovery of the mistake would be unconscionable.” Bogert, supra, § 474 at 94.

Missouri law is in accord with the views of the authors of these two respected treatises, which have been described by our Supreme Court as “the most eminent of authorities” on the subject of trusts. Cohn, 349 S.W.2d at 860. In Proffit v. Houseworth, 360 Mo. 947, 231 S.W.2d 612 (1950), the Missouri Supreme Court rejected an argument by the defendants that imposition of a constructive trust in favor of the plaintiff as to certain real property was impermissible since fraud, which, they claimed, “is the very foundation of a constructive trust,” had never been proven by the plaintiff. Id. at 617. Citing § 474 of the Bogert treatise quoted just above, the Court held that whether the plaintiffs name had been omitted from the contract of sale “through design or mistake” was “immaterial” to the proper disposition of the case. Id. Finding that “the evidence, especially that pertaining to the conduct of the parties with reference to the handling of the property, justifies but one conclusion, that is, that plaintiffs name ought to have been included in the contract of sale,” the Court proceeded to reverse the trial court’s judgment refusing to impose a constructive trust and remanded with instructions that the trial court enter a judgment declaring plaintiff to be the equitable owner of the property and directing the defendant to execute a deed conveying title to the plaintiff. Id. See also Stratton v. Stratton, 694 S.W.2d 510, 512 (Mo.App. E.D.1985); Maize v. Maize, 652 S.W.2d 751, 753 n. 3 (Mo.App. E.D.1983); McFarland v. Braddy, 560 S.W.2d 259, 264 (Mo.App. E.D.1978).

Thus, contrary to Appellant’s assertions, mistake is a sufficient ground for the imposition and enforcement of a constructive trust. We readily acknowledge the existence of substantial Missouri authority suggesting a contrary result. For example, in the early case of Ferguson v. Robinson, 258 Mo. 113, 167 S.W. 447, 452 (1914), the Missouri Supreme Court stated that “fraud, either actual or constructive, is the very foundation” of constructive trusts, “which are accordingly called, by those who delight in gamering expressions from the ripened fields of the classical languages, ‘trusts ex maleficio.’ ” Since then, many Missouri cases, some of which are of much more recent vintage, have reflected this outdated view, either directly or by inference. See, e.g., Beach v. Beach, 207 S.W.2d 481, 486 (Mo.1947); Parker v. Blakeley, 338 Mo. 1189, 93 S.W.2d 981, 988 (1936); Locke v. Locke, 901 S.W.2d 912, 915 (Mo.App. E.D.1995); Matlock v. Matlock, 815 S.W.2d 110, 114, 116 (Mo.App. S.D.1991); Beck v. Beck, 728 S.W.2d 703, 705-06, 708 (Mo.App. S.D.1987); Rutledge v. Rutledge, 655 S.W.2d 812, 814 (Mo.App. E.D.1983); Cave v. Cave, 593 S.W.2d 592, 597 (Mo.App. W.D.1979). While we do mot undertake the task of identifying every such case, we do note that although older Missouri cases limited utilization of constructive trusts exclusively to circumstances involving actual or constructive fraud or the violation of a confidential or fiduciary relationship, Missouri courts, led by our Supreme Court, now recognize, as discussed supra, that they may be imposed in broader circumstances, including where the evidence establishes that due to a mistake, the defendant received property belonging to plaintiff under conditions that in equity the defendant ought not be allowed to retain it.

And so it is here. As observed supra, the trial court found that Catherine accidentally received an undivided fee simple interest in the property as a result of a mistake made by attorney Kerber and/or the Lafayette County Recorder of Deeds. At the moment she received all Respondents’ interest in the property and thereby began enjoying an undivided ownership interest in real estate that was not intended to become hers alone, Catherine became subject to a duty to hold the real estate in constructive trust for John and Pam, the equitable co-owners of the property, even though Catherine’s acquisition of their ownership interests was not wrongful in and of itself. When Catherine subsequently executed the beneficiary deed, she breached the constructive trust, unjustly depriving John and Pam of a significant portion of their vested present and future interest in the property and unjustly enriching herself in the process. As equity requires that the mistake be remedied by returning the property to its rightful owners, the trial court did not err in imposing a constructive trust. Point denied.

In his third and final point, Appellant argues the trial court erred in imposing a constructive trust since the judgment was" against the weight of the evidence and Respondents failed to meet their burden of proof at trial to establish facts giving rise to such a trust by clear, cogent, and convincing evidence. In particular, he claims they “failed to show, by clear and convincing evidence, that the deeds were prepared incorrectly” since there was evidence that it was Catherine’s intent that the deeds be recorded in the order they were. Once again, we disagree.

As correctly noted by Appellant in his brief, the party seeking the imposition and enforcement of a constructive trust has the burden of establishing the facts that give rise to such a trust. Aronson v. Spitcaufsky, 260 S.W.2d 548, 552 (Mo.1953); Beach, 207 S.W.2d at 486. Moreover, due to the “public policy in favor of the security of titles and the reluctance of courts to disturb record or other apparent ownership,” Owen v. Smith, 532 S.W.2d 538, 539 (Mo.App. S.D.1976), and because “the cancellation of a deed calls for the exercise of the most extraordinary power of a court of equity,” Gibson v. Smith, 422 S.W.2d 321, 327 (Mo.1968), the proof requirements are quite stringent. “To establish a constructive trust, an extraordinary degree of proof is required. The evidence must be unquestionable in character. The evidence must be so clear, cogent, and convincing as to exclude every reasonable doubt in the mind of the trial court.” Fix, 847 S.W.2d at 765. “[V]ague or shadowy evidence or a preponderance of the evidence is not sufficient. The evidence must be so unquestionable in its character, so clear, cogent and convincing that no reasonable doubt can be entertained as to its truth and the existence of the trust.” Aronson, 260 S.W.2d at 549.

As our Supreme Court has put it, in cases where the clear, cogent, and convincing evidence standard applies, “the court should be clearly convinced of the affirmative of the proposition to be proved.” Grissum v. Reesman, 505 S.W.2d 81, 86 (Mo.1974) (emphasis in original). However, “[t]his does not mean that there may not be contrary evidence.” Id. Thus, the trial court “may be clearly convinced of the affirmative of a proposition even though it has contrary evidence before it.” In re Estate of Dawes, 891 S.W.2d 510, 523 (Mo.App. S.D.1994) (citing Grissum, 505 S.W.2d at 86). All that is required in constructive trust cases, therefore, is that “after considering all the evidence, oral and documentary, the court must be completely and fully convinced that [such] a trust was created.” Gardner v. Bernard, 401 S.W.2d 415, 428 (Mo.1966).

Appellant points to Catherine’s testimony that she visited Kerber’s law office only to discuss the preparation of a will, not deeds to the property, and that the three quitclaim deeds were recorded in proper order, thereby effectuating her express intent that she become the sole owner of the property so that all four of her children could share it equally upon her death if she still owned it at that time.

As noted in the factual summary provided supra, however, there was a wealth of evidence to the contrary. In particular, the sole witness with no particular axe to grind, attorney Kerber, testified that Catherine knew exactly what she was doing and clearly requested that she prepare new quitclaim deeds which, when executed and recorded in the proper order, would leave the property jointly titled in the names of Catherine, John, and Pam. Moreover, if Catherine’s true intent was merely to ensure that she regained an undivided fee simple interest in the property, the third quitclaim deed would have been entirely unnecessary, as she would have received such an interest by operation of law upon execution of the first and second quitclaim deeds by John and Pam.

At best, the evidence before the trial court was merely conflicting. The trial court was the sole judge of Catherine’s demeanor and credibility, and based on the record before us, could have been completely, clearly, and fully convinced, despite Catherine’s subsequent denials and claimed failure to remember, that the true intent of the parties was, beyond any reasonable doubt, to vest title in the subject real estate in Catherine, John, and Pam as tenants in common with rights of survivor-ship, rather than in Catherine alone in fee simple. See Estate of Dawes, 891 S.W.2d at 523-24; Nolte v. Wittmaier, 977 S.W.2d 52, 60 (Mo.App. E.D.1998). Finally, Murphy directs us to set aside a judgment on the ground that it is “against the weight of the evidence” only when we have a firm belief that the judgment is wrong. 536 S.W.2d at 32. Since we have no such belief and the evidence adduced by Respondents at trial met the appropriate (albeit high) standard of proof, Appellant’s third point is denied.

Although the trial court’s legal reasoning was entirely sound, its original judgment must be vacated due to the death of Catherine after the judgment became final but before the cause was submitted on appeal. Thus, the only issue remaining before us is the proper disposition of this case on remand.

Since “equity will compel one who has unfairly acquired and holds a property interest to convey that interest to the one to whom it justly belongs,” Durwood, 361 S.W.2d at 790, where property is held by one person upon a constructive trust for another, a court of equity will ordinarily specifically enforce the duty of the constructive trustee to convey the property to the other.

Where property is held by one person upon a constructive trust for another, the latter has the beneficial interest therein. In many cases the beneficiary of the constructive trust can by a proceeding in equity compel the constructive trustee to transfer the property to him in specie; he is entitled to specific enforcement of the constructive trust. This is true, for example, where the title to land or unique chattels is obtained by mistake or fraud.

Restatement (FiRSt) of Restitution § 160 cmt. e at 644 (1937). See also BogeRt, supra, § 472 at 60; Mercantile Trust Co. Nat’l Ass’n v. Anderson, 611 S.W.2d 548, 554 (Mo.App. E.D.1981).

Other forms of relief are, however, possible. For instance, the court “may by its own decree revest title in the complainant if it has such power.” BogeRT, supra, § 472 at 63. See, e.g., Parker, 971 S.W.2d at 883. The relief given may also be in the form of cancellation of the deed to the defendant and the quieting of title in the plaintiff. See, e.g., Price v. Morrison, 291 Mo. 249, 236 S.W. 297, 302 (1921).

On remand, we leave it to the sound discretion of the trial court to decide which of these forms of relief (or combination thereof) are appropriate. Therefore, we vacate the trial court’s judgment of October 24, 2003, and remand the cause to the trial court for its entry of a new judgment, not inconsistent with this opinion, which reflects the subsequent death of Catherine Brown.

All concur.

      . This action was originally brought by John and Pam against Catherine M. Brown ("Catherine"), Joseph, and Carolyn M. Clark ("Carolyn"). On August 20, 2002, Joseph and Carolyn were dismissed as defendants, leaving Catherine as the only remaining defendant. Catherine died testate on October 1, 2004, well after the judgment against her had become final and her notice of appeal had been filed but before oral argument in this court. On December 7, 2004, pursuant to motion under Rule 52.13(a)(1), this court issued an order substituting Joseph, an heir of Catherine and a successor in interest to her property, as Appellant in the cause. See Adams v. Mason, 358 S.W.2d 7, 17-18 (Mo.1962).

        . We are fully aware that the ultimate facts and circumstances of this case might also have justified the imposition, by the trial court, of a resulting trust. Like a constructive trust, a resulting trust is a species of implied trust because they both arise by implication of law out of the particular circumstances of the case. Norton v. Norton, 43 S.W.2d 1024, 1031 (Mo.1931). In contrast, though, a resulting trust is generally “one which the law implies to meet the requirement of justice that a legal status be given to what is the clear intention of the parties[J” Id. (internal quotation marks omitted). " ‘A resulting trust arises where a person makes or causes to be made a disposition of property under circumstances which raise an inference that he does not intend that the person taking or holding the property should have the beneficial interest therein, unless the inference is rebutted or the beneficial interest is otherwise effectively disposed of.’ ” Ferguson v. Stokes, 269 S.W.2d 655, 658-59 (Mo.1954) (quoting Restatement (First) of Trusts § 404 at 1250 (1935)). Be that as it may, however, since the facts and circumstances in the case sub judice properly demonstrate the existence of a constructive trust arising out of a mistake by a third party, it is unnecessary for us to consider the question any further. See, e.g., Rebel v. Lunsford, 216 S.W.2d 68, 70 (Mo.1949).


source: Caselaw Access Project

author: JOHN E. PARRISH, Presiding Judge.

license: Public Domain

text:
    D.M.K., b/n/f Edward R. Kolasky, and Edward R. Kolasky, Individually, Appellant, v. Amber Renee MUELLER, Respondent.
    No. 25691.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 20, 2005.

      Francis J. Murphy, III, Cordell & Cor-dell, P.C., St. Louis, for Appellant.
    No appearance for respondent.
   JOHN E. PARRISH, Presiding Judge.

Edward Ronald Kolasky (petitioner) appeals from the visitation and support awards included in a judgment that determined paternity, custody, support of, and visitation with D.M.K. The judgment declared petitioner as father of D.M.K. Petitioner and the child’s mother, Amber Renee Mueller (respondent), were awarded joint legal custody of D.M.K. Respondent was awarded physical custody of D.M.K. Petitioner was allowed visitation rights at specified times. Petitioner was ordered to pay child support in the amount of $961 per month. This court reverses the part of the judgment that designates times of visitation to allow the trial court to make changes in the visitation schedule that are required by existing statutes and remands with directions. In all other respects the judgment is affirmed.

Prior to this proceeding, the Missouri Division of Child Support Enforcement entered a “Judgment and Order” dated May 16, 2001, that directed the Missouri Bureau of Vital Records to enter petitioner’s name on the birth records of D.M.K. as D.M.K.’s father. The order further directed petitioner to pay child support in the amount of $600 per month and to maintain dependent health coverage for D.M.K. The order was entered by a person designated to conduct child support administrative hearings and render judgments pursuant to § 454.475.

Petitioner initiated this action by filing a two-count petition in the Circuit Court of Crawford County, Missouri, on June 28, 2001. Count I of the petition requested an order declaring that petitioner is the natural father of D.M.K. Count II requested custody of D.M.K. to be placed with petitioner and that respondent be ordered to pay child support in the amount of $100 per month.

Respondent’s answer included a request that she be awarded sole legal and physical custody of D.M.K. and that petitioner be ordered “to pay [her] child support in accordance with Form 14 and Rule 88.” Respondent’s answer sought modification of the child support judgment rendered by the Division of Child Support Enforcement alleging “[t]hat since the entry of said judgment, there has been a substantial and continuing change in the circumstances of Petitioner ... and Respondent ... such that, considering the financial resources of Petitioner and Respondent, the application of the child support guidelines and criteria set forth in Section 452.340 and Supreme Court Rule 88 to the financial circumstances of Petitioner and Respondent, would result in a change in the existing child support award by twenty percent or more.”

Petitioner and respondent first contacted one another in February 1999 by communicating in an internet “chat room.” Respondent was 18 years old. She lived in Bourbon, Crawford County, Missouri. Petitioner was 45 years old, albeit he told respondent he was 32. He lived in Tustin, California. In March 1999, petitioner flew from California to Missouri to meet respondent. Respondent returned the visit by going to California later that month, then again in May 1999.

In June 1999 the parties discovered respondent was pregnant with D.M.K. They communicated throughout the pregnancy. Petitioner visited respondent in Missouri “[s]even — [e]ight times” between learning respondent was pregnant and the child’s birth. D.M.K. was born in Missouri in January 2000. When he was about two months old, respondent took him to California to visit. Respondent had planned to stay a week, but left with D.M.K. earlier than planned following an argument with petitioner.

Petitioner maintained telephone contact with respondent following the California visit. Petitioner drove to Missouri “around Labor Day weekend of 2000.” He stayed in Missouri at Lake of the Ozarks for nine days. After several days, arrangements were made for him to visit respondent and D.M.K. He drove to Bourbon and picked up respondent and the baby. Respondent and D.M.K. spent the day with petitioner. It was late, so they decided to stay overnight. Petitioner took respondent and D.M.K. to respondent’s house the next day. Petitioner stayed two additional nights at a nearby motel. Respondent and the baby stayed with him. Petitioner did not see D.M.K. again until Father’s Day 2001. Petitioner came to Missouri. He stayed three days.

Petitioner’s first point on appeal contends the trial court erred in entering judgment in this case. Petitioner argues the trial court “did not have subject matter jurisdiction to receive evidence and amend a previously existing Division of Child Support Enforcement child support order because [respondent] failed to first exhaust her administrative remedies in her attempt to modify the administrative order before filing for a modification of the administrative order before the circuit court.” As this court perceives petitioner’s complaint in Point I, he challenges the trial court’s award of child support that exceeded the amount ordered by the Division of Child Support Enforcement. The administrative order directed petitioner to pay $600 per month. The judgment that is the subject of this appeal ordered payment of $961 per month.

The Division of Child Support Enforcement award was entered pursuant to § 454.475. Neither party sought judicial review of the award as permitted by § 454.475.5. A copy of the order was filed with the Circuit Clerk of the county in which respondent and D.M.K. reside pursuant to § 454.490.1. It provides, “Upon filing, the clerk shall enter the order in the judgment docket. Upon docketing, the order shall have all the force, effect, and attributes of a docketed order or decree of the circuit court....” McCubbin v. Taylor, 5 S.W.Bd 202, 206 (Mo.App.1999), explains, “As the administrative order for child support has all the ‘force, effect, and attributes’ of a circuit court order, [a] trial court [has] subject matter jurisdiction to modify the administrative order, as the administrative order effectively became the court’s order upon being docketed with the trial court.” Section 454.490.1 has been held “not unconstitutional.” State ex rel Hilburn v. Staeden, 91 S.W.3d 607, 612 (Mo. banc 2002).

Petitioner nevertheless contends that Hayes v. Porter, 30 S.W.3d 845 (Mo.App. 2000), requires a party to first exhaust administrative remedies afforded by § 454.475.5 in order to be entitled to seek a change, or modification, of the terms of an administrative order. He argues, based on Hayes, that because respondent failed to seek administrative review of the administrative order that set child support at $600 per month, she cannot now seek its modification by the circuit court. Petitioner’s reliance on Hayes is misplaced in that Hayes was an attack on the enforceability of an administrative order that had been entered some four years before rather than an attempt to modify child support prospectively.

Section 454.501 provides:

Nothing contained in sections 454.465 to 454.510 shall deprive courts of competent jurisdiction from determining the support duty of a parent against whom an order is entered by the director pursuant to the authority created by sections 454.460 to 454.505. Such a determination by the court shall supersede the director’s order as to support payments due subsequent to the entry of the order by the court, but shall not affect any support arrearage which may have accrued under the director’s order. The director’s order shall be pleaded and received by the court as evidence of the extent of the parent’s duty of support. [Emphasis added.]

Hayes involved an attempt to avoid payment of past amounts of child support. Hayes sought the determination that payments of arrearages due by the terms of the director’s order were not owed. That is not the situation here. Here, respondent sought modification of the director’s order. She sought an increase in future child support. Point I is denied.

Points II and III assert trial court error as to the amount of child support awarded. Point II argues that the trial court erred in its Form 14 calculation of presumed child support. Point III complains that the trial court erred in not finding the presumed child support unjust or inappropriate. Petitioner’s complaint in Point II is that the trial court failed to impute income to respondent. He argues that because respondent testified she was capable of earning more income than that assigned to her by the trial court, the trial court erred in calculating presumed child support.

Respondent was not employed outside the home at the time of trial. She had earnings, however, from babysitting a child in her home. She stated she earned between $30 and $60 per week. Respondent testified that if she were not at home watching her child, she was capable of working and earning approximately $893 per month; that she planned to go to work “[t]he following month, in February” and she thought she could earn about $7 an hour. She explained that she would have to hire a babysitter if she returned to work. She had not actually inquired about employment, but planned to explore the possibility of daycare or childcare work.

The trial court has discretion in determining whether income should be imputed to a party for purposes of making child support calculations. See Lavalle v. Lavalle, 11 S.W.3d 640, 650 (Mo.App.1999). Imputation decisions must be made on a case-by-case basis and only when appropriate circumstances are present. See id. It is not unusual for a court to decline to impute income to a custodial parent. See id. (citing numerous cases to that effect).

Engeman v. Engeman, 123 S.W.3d 227, 238 (Mo.App.2003).

Factors considered in assessing whether to impute income to a custodial parent include the age and maturity of the child or children, the age and health of the parent, availability of appropriate childcare givers, relationship between the expense of child-care givers and the net income the custodial parent would receive, and custodial parents’ motivations or reasons for remaining home with a child. See Woolsey v. Woolsey, 904 S.W.2d 95, 99 (Mo.App.1995). Further, a trial court’s assessment of an amount of income to impute to a party must be supported by evidence at trial. Monnig v. Monnig, 53 S.W.3d 241, 247 (Mo.App.2001). The court is not allowed to set an amount of income solely based on speculation. Id.

Respondent was 18 years old when she met petitioner and became pregnant. No evidence was presented that she had ever been employed. She testified that she planned to become employed and thought she could earn $7 an hour. There was no evidence, however, of the type of employment opportunities that existed or evidence of her employment skills. The trial court’s failure to impute income to respondent was not an abuse of discretion. Point II is denied.

Petitioner’s argument in Point III that the trial court erred in failing to find the amount of presumed child support was unjust or inappropriate is based on his evidence that each of his Missouri visitations cost $1,000. The trial court’s order allows petitioner 12 visitations per year with D.M.K., nine of which are to be in Missouri. The other three visits require the child to fly to California at petitioner’s expense. Petitioner argues the trial court did not consider the expenses he must incur in order to exercise his rights of visitation with D.M.K. in determining the amount of child support he was ordered to pay.

Rule 88.01(b) provides that there is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the correct amount of child support to be awarded. See also § 452.340.9. Petitioner contends the trial court erred in not declaring that the presumed amount of child support was unjust or inappropriate; that it erred in failing to find that the presumed amount of child support was, under the facts of this case, rebutted. See Rule 88.01(b); § 452.340.9.

Contrary to petitioner’s argument, the trial court considered the costs of petitioner’s visits with the child in determining the amount of child support it awarded. The trial court’s written findings include:

29. At trial, [petitioner] alleged he incurred expenses for each visit to Missouri in the approximate amount of $1,000, calculated as follows:
$450.00 Airline ticket
$300.00 $100.00 per night hotel expense
$100.00 Food
$150.00 Monthly expense for storage of vehicle kept in Missouri
30. [Respondent] should contribute in travel and visitation expenses incurred by [petitioner] in the same proportion as income is shared.... However, her proportionate share of monthly gross income is a mere 2.45%. The Court finds this to be a de minimis amount and refuses to order a contribution by [respondent],

Petitioner is a longtime resident of California. Respondent resided in Missouri with her family at the time he chose to meet her and engage in a sexual relationship that resulted in the birth of D.M.K. Petitioner is a professional land surveyor. The trial court found his monthly income to be $7,753. There is evidence that supports that finding. Respondent earns approximately $195 per month babysitting. The financial circumstance of the parties is an appropriate consideration in apportioning expenses incurred in exercising visitation. Ronzio v. Ronzio, 673 S.W.2d 100, 101 (Mo.App.1984). A trial court is afforded broad discretion in apportioning those expenses. Stanton v. Abbey, 874 S.W.2d 493, 501 (Mo.App.1994). A trial court’s determination of those expenses will be overturned only if there is a manifest abuse of discretion. Id. This court finds no such abuse of discretion. Point III is denied.

Points TV and V are directed to the visitation part of the judgment. Point IV argues the trial court erred in requiring visits to be conducted in Missouri. Point V contends it was error to not grant petitioner visitation on Father’s Day and Christmas Day and in causing petitioner to have “to fly back and forth between Missouri and California” on the times visitation was awarded during the summer. Point IV complains that petitioner should not have been restricted to visits in Missouri “because there was no evidence ... that if [petitioner’s] visitation were not restricted, the child’s physical health or emotional development would be impaired or endangered.”

The judgment specified petitioner’s visitation schedule in considerable detail. He was allowed weekend visitations in Missouri with D.M.K. commencing on the fourth Friday in January, February, March, May, June, August, September, and October. He was awarded visitation in Missouri in November that alternates between Thanksgiving weekend in even-numbered years and the fourth weekend in odd-numbered years. Petitioner was awarded “[o]ut-of-state” visitation with D.M.K. one week in April, three weeks in July until the age of six, and six weeks’ summer visitation beginning in July after D.M.K. is six years old. He is allowed one week during Christmas vacation.

Petitioner bases Point IV on the language in § 452.400.2. However, § 452.400.2 relates to modification of a trial court’s visitation order. Buschardt v. Jones, 998 S.W.2d 791, 799 (Mo.App.1999). The part of § 452.400.2 on which petitioner relies is found in the first sentence that states, “The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child, but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger the child’s physical health or impair his emotional development.” (Emphasis added.)

This case did not seek modification of visitation rights. Rather it is a case in which initial custody and visitation were awarded to the parties. Petitioner was awarded visitation as required by § 452.400.1. Section 452.400.2 is not applicable. Point IV is denied.

Petitioner complains in Point V that the custody schedule “is onerous and burdensome” because he is not given Father’s Day with D.M.K. and does not have Christmas Day with D.M.K. He also complains that in order to exercise the visitation he was awarded in the summer, he must travel to Missouri on several occasions.

Petitioner suggests that this case is akin to Maher v. Maher, 951 S.W.2d 669 (Mo. App.1997), in which the mother of the child moved from Missouri to Florida with the child after dissolution of the parties’ marriage. The time limitations on father’s visitation in Maher included visitation for as little as 12 hours on Father’s Day and 24 hours on the child’s birthday. The father was also awarded visitation every other weekend in Florida until the child reached the age of eight and then every other weekend in Missouri. The court in Maher found that the visitation schedule that required traveling over 1000 miles every other weekend, either for father or the child, and visits for “as little as 9 or 12 hours” after traveling such distances was unnecessarily burdensome. Id. at 676.

Maher involved the modification of a custody award that was part of a dissolution judgment rather than an initial award of custody and visitation. The original award gave the parents joint legal and physical custody of the child. The modification that provided the visitation schedule was formulated in conjunction with an approval for the mother and the child to move to Florida. It called for extensive travel and limited the father’s visitation to brief time periods. Maher held that the limitation imposed on the father’s time with the child was an abuse of discretion by the trial court.

In this case, unlike in Maher, the geographical distance between petitioner’s and respondent’s places of residence did not occur after the birth of D.M.K. Further, although significant travel is required for petitioner to exercise the visitation he was allowed, petitioner was granted significant periods of time with D.M.K. during those visitations. Under the circumstances of this case, the trial court did not abuse its discretion in formulating petitioner’s visitation schedule insofar as travel requirements and the amount of time allowed with D.M.K. are concerned.

Petitioner’s complaint that he would “never have Christmas Day with [D.M.K.]” is erroneous. The visitation schedule awards father visitation with D.M.K. on Christmas Day every other year. Petitioner was awarded visitation “[o]ut-of-state, in even-numbered years, Christmas vacation from 12:00 p.m. the day the child’s school vacation begins, or December 21st if the child is not yet enrolled in school, through 6:00 p.m. on December 29th.” Christmas Day is encompassed in this time period.

Petitioner’s complaint that the visitation schedule does not address visitation on Father’s Day is meritorious. A judgment that provides for child custody is required to include a specific written parenting plan that sets forth arrangements specified in § 452.310.7. See § 452.375.9. A trial court is not free to disregard the events enumerated in § 452.310.7. Simon-Harris v. Harris, 138 S.W.3d 170, 182 (Mo.App.2004). “The plain language of § 452.375.9 requires the trial court to include a specific written parenting plan following section 452.310.7.” Id.

Section 452.310.7(l)(c) requires the schedule detailing custody, visitation and residential time for a child with each party to include “[t]he child’s birthday, Mother’s Day and Father’s Day.” The judgment in this case does not do so. The part of the judgment detailing custody and visitation is reversed. The case is remanded with directions that the trial court prepare a parenting plan that complies with provisions of § 452.310.7. The actual time division otherwise provided by the judgment is not found to be erroneous. On remand the trial court need only write a compliant parenting plan. In the event the trial court concludes that some adjustment is required in the time division previously allowed in order to meet requirements of § 452.310.7, the trial court may, in its discretion, make the changes it deems necessary and appropriate. In all other respects, the judgment is affirmed.

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

      . References to statutes axe to RSMo 2000 unless stated otherwise.

      . Lewis v. Roskin, 823 S.W.2d 152, 154 (Mo.App.1992), explains, "Section 454.501 provides that nothing in §§ 454.465 to 454.510 [RSMo 1986] shall deprive courts of competent jurisdiction from determining the support duty of a parent against whom an order is entered by the director, but such order shall not affect any support arrearage which may have accrued under the director's order.” The provision of § 454.501 is unchanged since the 1986 revision cited in Lewis. This case does not involve a challenge to an ar-rearage. The trial court had jurisdiction to determine respondent’s motion to modify the previously awarded child support.

      . The trial court assigned monthly gross income of $195 to respondent in its Form 14 calculation.


author: GEORGE W. DRAPER, III, Judge.

text:
    Scott E. PONTIUS, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 83375.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 11, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 8, 2004.
    Case Transferred to Supreme Court Aug. 24, 2004.
    Case Retransferred to Court of Appeals Jan. 25, 2005.
    Original Opinion Reinstated Feb. 2, 2005.
    James A. Chenault, III, Jefferson City, MO, for Appellant.
    Gregory R. Futhey, Lake St. Louis, MO, for Respondent.
   GEORGE W. DRAPER, III, Judge.

This case involves a two vehicle collision without any bodily injury. The Director of Revenue (hereinafter, “the Director”) revoked Scott Pontius’ (hereinafter, “Respondent”) driving privileges for refusing to submit to a chemical test. After requesting, and receiving, a trial de novo, the trial court reinstated Respondent’s driving privileges because the Director failed to make a prima facie case. The only issue presented in this case is whether the arresting officers had probable cause to believe Respondent was driving a motor vehicle in an intoxicated condition. We affirm.

On the evening of March 21, 2002, three police officers responded to the scene of an automobile collision outside of the Days Inn Pub. The collision involved two vehicles. Witnesses at the scene informed the police officers that the vehicle involved in the collision backed into the passenger side of a stopped car. The person in the vehicle exited, looked at the damage, and asked the driver of the other vehicle not to call the police. This person then walked into the Days Inn Pub without giving his name or insurance information to any witness. Witnesses provided the police with a description of this person.

The police officers identified Respondent as being the registered owner of the car involved in the collision. The police officers attempted to locate Respondent by canvassing the Days Inn Pub. While inside, the police officers received a phone call from a woman who identified herself as a friend of Respondent. She told them she drove Respondent home from the pub but refused to allow the police officers to speak with Respondent.

Approximately one hour later, the police officers arrived at Respondent’s home.

They noted he appeared to match the description given to them by the witnesses. They also noticed Respondent had a strong smell of alcohol on his breath, his balance was uncertain, and his eyes were watery, bloodshot, and glassy. The police officers arrested Respondent for leaving the scene of an accident and for suspicion of driving while intoxicated.

At the police station, Respondent refused to submit to field sobriety tests and a breath test. Further, one of the witnesses from the accident scene identified Respondent as the driver of the car that hit them.

The Director revoked Respondent’s driving privileges pursuant to Section 577.041 RSMo (2000). Respondent appealed to the circuit court, and a drug court commissioner found in favor of the Director. Respondent petitioned the circuit court for a trial de novo. At the trial de novo, the Director stipulated its case on the record pursuant to Section 302.312. On April 17, 2003, the trial court found in favor of the Director. Then on May 14, 2003, Respondent filed a motion to reconsider the judgment; one day after this Court handed down its mandate in Sooch v. Director of Revenue, 105 S.W.3d 546 (Mo.App. E.D.2003) (finding a drug court commissioner lacks jurisdiction over a driver’s petition for trial de novo following revocation of his driver’s license by the Director).

As a result of our holding in Sooch, the circuit court went forward with the de novo hearing. During the hearing, the trial court held the witness statements were hearsay and could not be considered by the court. Hence, the trial court reinstated Respondent’s driving privileges. The Director brings this appeal.

On appeal, the Director argues the trial court erred in failing to consider witness statements from its records and in reinstating Respondent’s license because Director made a prima facie case. Director believes the records could be submitted pursuant to Section 302.312. Further, Director contends the witness statements were not hearsay because they were not offered to prove the truth of the matter asserted but offered to show the officer had reasonable grounds to arrest Respondent.

We must affirm the decision of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). If the trial court erroneously declared or applied the law, its judgment will be afforded no deference on appeal. Weiland v. Director of Revenue, 32 S.W.3d 628, 630 (Mo.App. W.D.2000).

In a refusal case, the Director has the burden of establishing a prima facie case, pursuant to Section 577.041.4. The Director must demonstrate that: (1) the person was arrested or stopped; (2) the officer had reasonable grounds to believe the person was driving a motor vehicle while in an intoxicated condition; and (3) the person refused to submit to the test. Section 577.041.4; Hockman v. Director of Revenue, 103 S.W.3d 382, 384 (Mo.App. W.D.2003). “If the Director makes a prima facie case, the burden then shifts to the driver to rebut that case by a preponderance of the evidence.” Roberts v. Wilson, 97 S.W.3d 487, 492 (Mo.App. W.D.2002). Conversely, if the Director fails to make a prima facie case, it will result in the reinstatement of driving privileges. Nightengale v. Director of Revenue, 14 S.W.3d 267, 269 (Mo.App. W.D.2000).

Respondent concedes he was arrested and refused to submit to a blood alcohol test. Hence, the only query before this Court is whether there were reasonable grounds to believe Respondent was driving a motor vehicle while in an intoxicated condition. The Director only submitted its case on a cold record. The record reflects that no officer saw Respondent driving nor his condition immediately following the accident. The police officer’s first encounter with Respondent was at his home approximately one hour after the collision. Respondent was identified by witness descriptions as the person who drove one of the vehicles in the collision. The police officers believed Respondent to be under the influence of alcohol at his home.

The Director contends the hearsay statements of the accident witnesses are sufficient to prove the arresting officers had reasonable grounds to believe an individual was driving a motor vehicle in an intoxicated condition in accordance with Section 577.041. The Director asserts the statements were not hearsay evidence because they were not being offered for the truth of proving Respondent was driving but rather to explain the police officers reasonable grounds for arresting Respondent.

We need not decide whether the civilian statements should have been admissible in this case because even if they were admitted, they would not establish reasonable grounds to believe Respondent was driving while in an intoxicated condition. The first indicia Respondent was intoxicated occurred at his home, almost one hour after the collision. There is no evidence on the record indicating Respondent’s condition at the time of the collision was anything but normal. “All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” Rule 73.01(c). The evidence only demonstrates Respondent appeared to be intoxicated at his home one hour after the accident. Therefore, the police officers did not have reasonable grounds to believe Respondent was in an intoxicated condition while driving at the time of the accident.

The Director failed to prove there were reasonable grounds to believe Respondent was driving a motor vehicle while in an intoxicated condition. Hence, the Director failed to present a prima facie case, and Respondent was not required to present rebuttal evidence.

The judgment of the trial court is affirmed.

SHERRI B. SULLIVAN, C.J., and PATRICIA L. COHEN, J., concur.

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


author: JOSEPH M. ELLIS, Judge.

text:
    STATE of Missouri, Respondent, v. Darrell HARRIS, Appellant.
    No. WD 63493.
    Missouri Court of Appeals, Western District.
    Jan. 11, 2005.

      Rosemary E. Pereival, Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and LISA WHITE HARDWICK, Judge.
   JOSEPH M. ELLIS, Judge.

Appellant, Darrell L. Harris, was charged by second amended information with one count of trafficking drugs (specifically, 90 grams or more of methamphetamine) in the second degree (§ 195.223, Count I); one count of possession of a controlled substance (namely, marijuana weighing more than 5 grams) with intent to distribute (§ 195.211, Count II); and one count of possession of a controlled substance (in particular, a mixture or substance containing cocaine salts) with intent to distribute (§ 195.211, Count III). Appellant waived his right to trial by jury, and was found guilty as charged by the Circuit Court of Platte County after a bench trial which commenced on January 27, 2003. On May 15, 2003, the circuit court sentenced Appellant, as a prior and persistent drug offender, to consecutive terms of imprisonment of fifteen years on Count I, fifteen years on Count II, and twelve years on Count III, all in the custody of the Missouri Department of Corrections. Appellant appeals his conviction on Count III, alleging that it violates his federal constitutional right to be free from double jeopardy. We affirm.

The sufficiency of the evidence to support Appellant’s convictions is not at issue in this appeal. For this reason and in light of the nature of the issue raised in his sole point relied on, we need not recite the evidence, which we view in the light most favorable to the circuit court’s judgments of conviction, in exhaustive detail. At about 2:30 p.m. on October 31, 2001, Appellant was driving a pickup truck north on Interstate 435 in Platte County near where that highway crosses over State Highway 152. The truck, whose sole occupant was Appellant, left the northbound lanes of 1-435, crossed over onto the median, was launched into the air when it ran over a bump that acted like a ramp, landed in the westbound lane of Highway 152, and then veered off that road, where it finally came to rest.

After Appellant got out of the truck, he reached back into it and removed a blue duffel bag. Although his face was bloody-due to the crash, Appellant crawled up a concrete embankment carrying the duffel bag, crossed over the northbound lanes of 1-435, and hid the duffel bag in some bushes alongside the roadway. Appellant then returned to his truck. When fire department and law enforcement personnel arrived on the scene, Appellant refused medical treatment. After fire department and law enforcement personnel heard various witnesses’ statements about Appellant’s unusual conduct concerning the blue duffel bag, they began looking for, found, and seized the bag where Appellant had hidden it.

The blue duffel bag contained the following: a bag containing 391.53 grams of marijuana, a bag containing smaller baggies that contained a total of 193.82 grams of methamphetamine in one-ounce or one-eighth ounce quantities, two other baggies containing powdered methamphetamine, a baggie containing 24.79 grams of cocaine salts, a leather bag containing 35 individually wrapped hypodermic needles, baggies containing residue, an open box of sandwich bags, two digital scales with a maximum capacity of 150 grams, and a ’bottle containing Viagra pills. An expert in the illicit drug trade testified that the quantity and variety of drugs and the way they were packaged; the type, capacity, and number of the scales; and the packaging materials found in the duffel bag were all consistent with an intent to distribute or traffic the drugs, and were all inconsistent with possession of the drugs merely for personal use.

At the close of the State’s evidence, defense counsel moved for dismissal of “at least two of the [three] counts” against Appellant on double jeopardy grounds, but the trial court overruled the motion. Appellant then took the stand on his own behalf. He admitted that the blue duffel bag and everything found in it was his, but claimed that all of the drugs were only for his personal use and denied having any intention to sell or distribute them. At the close of the evidence, the circuit court found Appellant guilty as charged on all three counts. He was later sentenced on all three convictions, and this appeal followed after we granted leave for Appellant to file his notice of appeal out of time under Rule 30.03.

In his sole point rélied on, Appellant argues that the trial court erred in convicting and sentencing him on both Counts II and III because this violated his federal constitutional right to be free from double jeopardy in that the statute underlying those counts, § 195.211, does not authorize multiple punishments for the act of possessing different controlled substances with the intent to distribute them. We disagree, as § 195.211 clearly expresses the General Assembly’s intent to authorize separate convictions and punishments for each and every distinct controlled substance possessed by a defendant with the intent to distribute that controlled substance.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” Whether a criminal defendant’s right to be free from double jeopardy has been violated is a question of law, which is reviewed de novo. State v. Schumacher, 85 S.W.3d 759, 761 (Mo.App. WD.2002). “The clause contains two distinct protections for criminal defendants: (a) protection from successive prosecutions for the same offense after either an acquittal or a conviction and (b) protection from multiple punishments for the same offense.” State v. Flenoy, 968 S.W.2d 141, 143 (Mo. banc 1998). However, “[t]he protection applies only to multiple punishments or prosecutions for the ‘same offence.’ Multiple convictions are permissible if the defendant has in law and in fact committed separate crimes.” Id. That is to say, the Double Jeopardy Clause does not “ ‘protect a defendant from punishment for more than one offense arising from the same set of facts if one has in law and fact committed separate crimes.’ ” State v. Mullins, 140 S.W.3d 64, 68-69 (Mo.App. W.D.2004) (quoting State v. Murphy, 989 S.W.2d 637, 639 (MoApp. E.D.1999)). ■

Since whether a particular course of conduct by a defendant involves one or more distinct offenses under a given criminal statute depends on the legislature’s intent as expressed by “the definition of the offense and its allowable unit of prosecution,” State v. Nichols, 865 S.W.2d 435, 437 (Mo.App. E.D.1993), we must first examine the statute under which Appellant was convicted. Mullins, 140 S.W.3d at 69.

Section 195.211, the statutory basis for Counts II and III, provides:

1. Except as authorized by sections 195.005 to 195.425 and except as provided in section 195.222, it is unlawful for any person to distribute, deliver, manufacture, produce or attempt to distribute, deliver, manufacture, or produce a controlled substance or to possess with intent to distribute, deliver, manufacture, or produce a controlled substance.
2. Any person who violates or attempts to violate this section with respect to any controlled substance except five grams or less of marijuana is guilty of a class B felony.
3. Any person who violates this section with respect to distributing or delivering not more than five grams of marijuana is guilty of a class C felony.

Section 195.211.1 contains the substantive language defining the offense. As applicable here, it provides: “[I]t is unlawful for any person ... to possess with intent to distribute ... a controlled substance.” The State argues that in using the word “a” in the phrase “a controlled substance,” the legislature denoted the allowable unit of prosecution for § 195.211 and plainly expressed its intent to authorize separate prosecutions (and cumulative punishments) for the possession, with intent to distribute, of each of the various controlled substances Usted in Schedules I though V. We agree.

The word “a” is defined in Black’s Law Dictionary as a word “placed before nouns of the singular number, denoting an individual object or quality individualized.” Black’s Law Dictionary 1 (6th ed.1990) (emphasis added). It is also defined as “one.” Webster’s Third New International Dictionary 1 (3d ed.1976). The plain and ordinary meaning of the word “a” is the singular “one.”

Nichols, 865 S.W.2d at 437. Accordingly, a criminal statute “which prefaces the object of the offense with the word ‘a’ unambiguously authorizes singular units of prosecution.” United States v. Freisinger, 937 F.2d 383, 390 (8th Cir.1991). For this reason, Missouri courts interpreting various criminal statutes using the word “a” to specify the allowable unit of prosecution have uniformly held that there was no double jeopardy violation when the defendant was prosecuted and punished for multiple violations of the same statute. See, e.g., Mullins, 140 S.W.3d at 69 (collecting cases).

In his brief, Appellant chooses not to address the State’s argument. Instead, he focuses on § 195.211.2, which uses the word “any” in the phrase “any controlled substance.” Relying on State v. Baker, 850 S.W.2d 944, 947-48 (Mo.App. E.D. 1993), and several federal cases for the proposition that because it contemplates the plural rather than specifying the singular, the word “any” has generally been held to be ambiguous in connection with the allowable unit of prosecution for criminal statutes, Appellant argues that § 195.211 is ambiguous and must be construed in his favor under the rule of lenity. If § 195.211.2 contained the substantive language defining the offenses for which Appellant was prosecuted and punished, we might agree with him. However, as noted supra, it does not. Rather,, as observed by the State, § 195.211.2 merely provides that any person who commits or attempts to commit the offense defined in § 195.211.1 is guilty of a class B felony unless the particular controlled substance involved is five grams or less of marijuana.

As we have just observed, the General Assembly used “a” when specifying the allowable unit of prosecution but used “any” in a different part of § 195.211. This is significant, because “ ‘the general rules of statutory construction require that meaning be given to each word used in a legislative enactment, insofar as possible, and one word of a statute should not be considered a needless repetition of another.’ ” Lora v. Dir. of Revenue, 618 S.W.2d 630, 633 (Mo.1981) (quoting State ex rel. Thompson-Stearns-Roger v. Schaffner, 489 S.W.2d 207, 215 (Mo.1973)); see also Baker, 850 S.W.2d at 948 n. 2. In particular, it has been held that when they appear in the same criminal statute, the words “ ‘[a]ny’ and ‘a’ are not synonymous. ‘Any’ includes ‘all’ and ‘a’ is limited to ‘one.’ ” Harward v. Commonwealth, 229 Va. 363, 330 S.E.2d 89, 91 (1985).

For these reasons, we hold that the General Assembly intended to make the possession, with intent to distribute, of any one of the different controlled substances listed in Schedules I though V a separate and distinct offense under § 195.211. Thus, Appellant’s federal constitutional and state common law rights to be free from double jeopardy were not abridged when the trial court convicted and sentenced him on both Counts II and III. Point denied.

The judgment is affirmed.

All concur.

      . Unless otherwise noted, all statutory refer-enees are to RSMo 2000.

      . This protection is made applicable to state governments by virtue of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). In contrast, Article I, Section 19 of the Missouri Constitution provides that no person shall "be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury.” Since Appellant was never acquitted by a jury, the Double Jeopardy Clause of the Missouri Constitution does not apply to his case. State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992). Nevertheless, Appellant’s protection from double jeopardy under Missouri law is coextensive with that afforded by the Fifth Amendment. As pointed out in State v. Richardson, 460 S.W.2d 537, 538 (Mo. banc 1970), abrogated on other grounds by McTush, 827 S.W.2d at 188-89, Missouri enforces the common law rule that no person shall, for the same offense, be twice put in jeopardy: "We find no readily discernible difference between the Fifth Amendment guarantee against double jeopardy and the common law guarantee as applied in this state."

      . Section 195.010(5) defines the phrase "controlled substance” as used in §§ 195.005 to 195.425 as "a drug, substance, or immediate precursor in Schedules I through V listed in sections 195.005 to 195.425." Marijuana is listed in Schedule I (see § 195.017.2(4)(s)), and cocaine salts are listed in Schedule II {see § 195.017.4(l)(d)). Thus marijuana and cocaine salts are both "a controlled substance” as that phrase is used in § 195.211.


text:
    Delores Ann Reiner HOOVER, Appellant Pro Se, v. COMMUNITY BLOOD CENTER, Defendant, Division of Employment Security, Respondent.
    No. WD 64060.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.

      Delores Ann Reiner Hoover, St. Joseph, pro se.
    Cynthia Ann Quetsch, Jefferson City, for respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, PATRICIA BRECKENRIDGE, Judge and JOSEPH M. ELLIS, Judge.
   JOSEPH M. ELLIS, Judge.

Appellant Delores Hoover appeals from an order issued by the Labor and Industrial Relations Commission disqualifying her from receiving unemployment benefits for five weeks pursuant to § 288.050.2 based upon a finding that Appellant was terminated from her employment at the Community Blood Center for misconduct related to work.

Appellant, a licensed practical nurse, began working for the Community Blood Center in St. Joseph, Missouri, on September 18, 2001. Appellant was employed as a donor care technician/phlebotomist. In that position, Appellant was charged with reviewing the histories provided by would-be donors and collecting blood donations from suitable donors.

On November 26, 2003, Appellant was called into the Director’s office and counseled about three errors that Appellant had made in either reviewing donor history forms or failing to place unit number labels on the donation bags. Those mistakes had resulted in the destruction of the collected blood units. Appellant was told that, for the nejct month, she would need to have a supervisor review and sign off on her work before the donor left the donation site.

On December 9, 2003, Appellant failed to place a unit number label on the corresponding donor history form. When this mistake was later discovered, the blood unit was destroyed.

On December 19, 2003, Appellant failed to notice that a potential donor had indicated on her donor history form that she did not feel well that day. After the unit was collected, Appellant’s supervisor signed off on her work. When the oversight on the donor history form was later discovered, the blood unit was destroyed.

On December 28, 2003, the Community Blood Center received a complaint from a donor about a conversation the donor had previously had with Appellant while waiting in the lobby to give blood. The donor was upset by comments that Appellant had made to her while discussing the donor’s upcoming knee-replacement surgery. During the course of that discussion, Appellant had informed the donor that the tools used in that type of surgery were similar to the tools in her husband’s garage. Appellant also informed the donor that things can go wrong during surgery and that it would be advisable to have a medical directive drawn up in case problems arose.

On January 6, 2004, Appellant received a separation letter from the Community Blood Center terminating her employment. That letter stated:

This letter is to inform you that your employment with the Community Blood Center is being terminated effective immediately for the following incidents.
— On 11/26/03 you were counseled for errors related to Donor History forms and no Unit Number Labels, resulting in the destruction of three units. At the time of this counseling you were placed on a probationary period of 30 days wherein you were to have your paperwork signed off on by a supervisor.
— On 12/09/03 you had another incident where you failed to put the Unit Number Label on the DHF, resulting in a destroyed unit.
— On 12/19/03 you had an error on a Donor History Form, resulting in another destroyed unit.
— ■ On 12/23/03 a customer complaint was received from a donor stating that inappropriate comments you made regarding her pending surgery upset her.
Due to your lack of judgment regarding these incidents and failure to follow SOP [standard operating procedure] resulting in the destruction of units the Community Blood Center consequently has no choice but to immediately sever this employment relationship.

Later that day, Appellant filed a claim for unemployment benefits. Shortly thereafter, on January 8, 2004, the Community Blood Center filed a letter of protest to Appellant’s claim asserting that Appellant had been “discharged from employment with the Community Blood Center for failure to follow Standard Operating Procedures.” The Community Blood Center attached a copy of the termination letter to its letter of protest.

On January 21, 2004, a deputy with the Missouri Department of Employment Security issued his determination that Appellant should be disqualified from unemployment benefits for five weeks because she had been “discharged for misconduct connected with work.” The deputy determined that the comments that Appellant had made to the donor who had surgery pending were inappropriate and that making such comments constituted misconduct connected to work.

Appellant subsequently filed an appeal of the Deputy’s determination with the Appeals Tribunal. A hearing was conducted on Appellant’s claim on February 11, 2004. Appellant testified on her own behalf at that hearing, and one of Appellant’s supervisors, Dorothy Bolenbaugh, testified on behalf of the Community Blood Center. On February 20, 2004, the Appeals tribunal issued its decision, affirming the Deputy’s determination and disqualifying Appellant from five weeks of unemployment benefits. The Appeals Tribunal found that Appellant had been discharged for “causing units of blood to be destroyed and for remarks she had made to a donor there to give blood for the donor’s scheduled surgery.” The Appeals Tribunal found that Appellant had “disregarded the employer’s interest and expected standards of behavior by causing units of blood to be destroyed and making inappropriate remarks to a donor about the donor’s surgery.” The Appeals Tribunal concluded that Appellant had therefore been terminated for misconduct connected with work.

Appellant appealed the decision of the Appeals Tribunal to the Labor and Industrial Relations Commission (“the Commission”). On March 29, 2004, the Commission affirmed the decision- of the Appeals Tribunal and adopted that opinion as its own.

In her sole point on appeal, Appellant contends that the Commission’s determination that she was terminated for misconduct connected with her work was not supported by sufficient evidence. She further argues that the Commission failed to make any finding that she willfully, intentionally, or deliberately - disregarded her employer’s interests and expected standards of behavior as required for such behavior to constitute “misconduct” under Missouri Law and that the evidence would not support such a finding.

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;
(4) That there was no sufficient competent evidence in the record to warrant the making of the award.

Quik ‘N Tasty Foods, Inc. v. Division of Employment Sec., 17 S.W.3d 620, 623-24 (Mo.App. W.D.2000) (quoting § 288.210). “ ‘[Wjhether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record.’ ” Dolgencorp, Inc. v. Zatorski 134 S.W.3d 813, 817 (Mo.App. W.D.2004) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). “ ‘An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.’” Id. (quoting Hampton, 121 S.W.3d at 223). Furthermore, on appeal, we are “not bound by the Commission’s conclusions of law or the Commission’s application of law to the facts.” McClelland v. Hogan Pers., LLC, 116 S.W.3d 660, 664 (Mo.App. W.D.2003).

Pursuant to § 288.050.2, if an individual is fired for misconduct connected with his or her work, that individual may be denied employment security benefits for four to sixteen weeks. Dixon v. Division of Employment Sec., 106 S.W.3d 536, 540 (Mo.App. W.D.2003). The employment security statutes fail to define the term “misconduct”; however, Missouri appellate courts have consistently defined “misconduct” as:

[A]n act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.

Zatorski, 134 S.W.3d at 818 (quoting City of Kansas City v. Arthur, 998 S.W.2d 870, 873 (Mo.App. W.D.1999)). With regard to each of these ways “in which an employee can engage in misconduct, there is the requirement that the employee willfully violate the rules or standards of the employer.” Id. “ ‘[WJhether an employer has solid grounds to terminate an employee is not the same issue as whether the former employee qualifies for compensation.’ ” Dixon, 106 S.W.3d at 540 (quoting Miller v. Kansas City Station Corp., 996 S.W.2d 120, 124 (Mo.App. W.D.1999)). “ ‘There is a ‘vast distinction’ between the violation of a rule of an employer that would justify the discharge of the employee and a violation of such rule that would warrant a determination of misconduct connected with the employee’s employment so as to disqualify him [or her] for unemployment compensation benefits.’ ” McClelland, 116 S.W.3d at 665 (quoting Pemiscot County Mem’l Hosp. v. Missouri Labor & Indus. Relations Comm’n, 897 S.W.2d 222, 226 (Mo.App. S.D.1995)). “Poor workmanship, lack of judgment, or the inability to do the job do not disqualify a claimant from receiving benefits on the basis of misconduct.” Id.

In general, a claimant bears the burden of demonstrating that he or she is entitled to unemployment benefits; “[h]owever, ‘when the employer claims that the applicant was discharged for misconduct, the burden shifts to the employer to prove the claim of misconduct connected with work.’ ” Id. at 664 (quoting Miller, 996 S.W.2d at 124). Thus, the Community Blood Center bore the burden of proving by a preponderance of the evidence that Appellant “willfully violate[d] the rules or standards of the employer,” Zatorski 134 S.W.3d at 818, and that her actions were not simply the result of poor workmanship, lack of judgment, or an inability to do the job. McClelland, 116 S.W.3d at 665.

In this case, the Community Blood Center presented evidence that Appellant failed to properly place unit number labels on collection bags on two or three occasions and had failed to notice problems with donor history forms on two or three occasions. These mistakes resulted in the blood units involved being destroyed. The final two of these mistakes occurred after Appellant had been reprimanded for the first three instances.

The Community Blood Center also presented testimony establishing that Appellant had made some remarks to a donor who was about to undergo knee replacement surgery and that the donor had complained about these comments to the employer. In answering the donor’s questions about the surgical procedure, Appellant told the donor that the tools that would be used in the surgery were similar to those the donor’s husband might have in their garage. Appellant also told the donor that things can go wrong with any surgery and suggested to the donor that she draft an advanced directive prior to surgery in case anything went wrong. During the hearing, Appellant admitted making those statements to the donor and that she knew the donor was nervous about the surgery.

Ultimately, the Commission found that Appellant was guilty of misconduct connected with her work because she had “disregarded the employer’s interest and expected standards of behavior by causing units of blood to be destroyed and by making inappropriate remarks to a donor about the donor’s surgery.” The question now before this Court is whether the Commission’s legal finding that this behavior constituted misconduct was sufficiently supported by the aforementioned evidence.

With regard to the mistakes made by Appellant related to the unit number labels and donor history forms, the Community Blood Center has never alleged, let alone proven, that Appellant willfully committed those errors. Nothing in the record indicates that these errors were anything more than negligent omissions on the part of Appellant. While those mistakes made by Appellant certainly constitute acts of negligence and/or poor workmanship and are reasonable grounds for firing Appellant, “poor workmanship and mere negligence do not rise to the level of misconduct” for purposes of the unemployment compensation law. Dixon, 106 S.W.3d at 541. Absent evidence that Appellant deliberately or purposefully committed these errors, she cannot properly be found to have committed an act of misconduct. See id. at 542.

With regard to Appellant’s comments to the donor about the donor’s upcoming surgery, Appellant obviously intended to make the comments to the donor and those statements could certainly be viewed as insensitive and inappropriate. The issue, however, is whether Appellant intended to disregard the standard of behavior her employer had the right to expect from her in making those statements. Appellant testified that she had simply done her best to answer questions posed to her by the donor about the donor’s upcoming surgery. While the Commission was not required to accept Appellant’s testimony as credible, the Community Blood Center did not allege at any time, let alone prove, that any of the comments made by Appellant were untrue or that Appellant had any improper motive for making the statements. Indeed, in the separation letter given to Appellant, the Community Blood Center cited Appellant’s “lack of judgment” regarding this incident. Similarly, the only witness to testify on behalf of the Community Blood Center, Appellant’s supervisor, Dorothy Bolenbaugh, testified that Appellant demonstrated a “poor lack of judgment” in making the comments to the donor.

On appeal, the Division of Employment Security offers the following argument regarding why Appellant’s comments to the donor should be deemed to be “misconduct”:

Claimant showed poor judgment in responding to the donor’s inquiries, showing a lack of sensitivity and tact when she described the instruments to be used in the surgery. Regardless of the accuracy of Claimant’s statements, they would not in anybody’s mind be the kind of statements that would tend to reassure a person who is already nervous about undergoing surgery. This was indeed extremely poor judgment on Claimant’s part, and this conduct is sufficient to rise to the level of misconduct under the Employment Security Law.

The Division never asserts that the Claimant’s comments were the result of anything more than a lack of judgment or identifies any evidence that would support such a conclusion.

As noted, supra, “ ‘poor workmanship, lack of judgment or the inability to do the job do not disqualify a claimant form receiving benefits on the basis of misconduct.’ ” Dixon, 106 S.W.3d at 540 (quoting Powell v. Division of Employment Sec., 669 S.W.2d 47, 51 (Mo.App. W.D.1984)) (emphasis added). The evidence simply does not support a determination that Appellant’s comments were the result of anything more than simple lack of judgment and, therefore, does not establish that Appellant intentionally disregarded the standards of behavior that her employer had the right to expect of its employees. Accordingly, the Commission erred in finding that this behavior constituted “misconduct” under § 288.050.2.

The Commission’s decision is reversed.

All concur.

      . The duration of the period over which a claimant is denied benefits is determined by the deputy based upon the seriousness of the misconduct. Dixon, 106 S.W.3d at 540.