author: BARBER, Judge.

text:
    AMERICAN LIFE & ACCIDENT INSURANCE COMPANY OF KENTUCKY, INC., Appellant, v. COMMONWEALTH of Kentucky, Revenue Cabinet; Dana B. Mayton, In Her Official Capacity as Current Secretary of The Kentucky Revenue Cabinet; and, The Kentucky Board of Tax Appeals, Appellees.
    No. 2003-CA-001802-MR.
    Court of Appeals of Kentucky.
    Oct. 15, 2004.
    Discretionary Review Denied by Supreme Court Oct. 12, 2005.

      Mark F. Sommer, John R. Cummins, Greenbaum, Doll & McDonald, PLLC, Louisville, KY, for appellant.
    Douglas M. Dowell, Division of Legal Services Finance and Administration Cabinet, Frankfort, KY, for appellees, Revenue Cabinet.
    Before BARBER, KNOPF, and TACKETT, Judges.
   OPINION

BARBER, Judge.

At issue in this appeal is whether the two-year statute of limitations in KRS 134.590 or the four-year statute of limitations in KRS 134.580 applies to claims for refunds for taxes paid pursuant to KRS 136.320 by American Life & Accident Insurance Company of Kentucky, Inc. (American Life).

American Life contends that the four-year time limit applies while the Commonwealth of Kentucky, Revenue Cabinet (Revenue Cabinet), argues that the two-year statute of limitations is the correct law to apply. American Life also maintains that no matter what statute of limitations is held appropriate, it is entitled to receive either equitable recoupment or set-off of amounts it overpaid on its tax liability for the years in question against any future tax liability it may incur. We agree with the circuit court that the two-year statute of limitations is the proper one to apply in this case, and that American Life is not entitled to equitable recoupment or set-off, thus, we affirm the circuit court’s judgment.

Turning to the issues raised in this appeal, whether the two-year statute of limitations or the four-year statute of limitations applies to American Life’s refund claims, and whether American Life is entitled to equitable recoupment or set-off of the taxes it has paid, it is observed that there is no dispute as to the material facts.

American Life is a Kentucky Life Insurance Company that pays taxes under KRS 136.320. From 1988 to 1996 American Life paid taxes in accordance with KRS 136.320 which imposes:

An annual tax of seventy cents (70 cents) on each one hundred dollars ($100) of the fair cash value of “taxable capital” and one-tenth of one cent ($.001) on each one hundred dollars, ($100) of the fair cash value of “taxable reserves” shall be imposed for state purposes. The tax shall be in lieu of all excise, license, occupational, or other taxes imposed by the state, city, or other taxing district, except as provided in subsections (4), (5), and (6) of this section.

KRS 136.320(3).

The “taxable capital” is determined by deducting “taxable reserves” from “capital,” less exempt intangible personal property. KRS 136.320(2)(a). Other provisions of the statute define the terms “capital” and “taxable reserves.” KRS 136.320(l)(a) & 136.320(2)(b). Capital is also referred to as “the company’s intangible personal property.” KRS 136.320(l)(a). KRS 136.320(l)(b) requires American Life to provide to the Revenue Cabinet the fair cash value of its intangible personal property exempt from taxation by law.

The Revenue Cabinet has traditionally interpreted property to be included in the calculation of intangible personal property the same as it did under KRS 132.020. KRS 132.020 and KRS 136.030 were held to be unconstitutional in St. Ledger v. Commonwealth of Kentucky, Revenue Cabinet, Ky., 942 S.W.2d 893 (1997). The specific property unconstitutionally included in the calculation of intangible personal property is not relevant to the issues in this appeal except to note that the Revenue Cabinet agrees that the items included should not have been included.

In 1997, based on the outcome of St. Ledger, American Life applied for a refund for a portion of the taxes it had paid under KRS 136.320 from 1988 to 1996. The Revenue Cabinet issued a refund for the tax years 1995 and 1996, but refused to refund any further tax years or to issue a credit to American Life for the years 1988 to 1994. The Revenue Cabinet’s reasoning was that the two-year statute of limitations contained in KRS 134.590 rather than the four-year statute of limitations in KRS 134.580 concerning refunds of taxes applied. Further, the Revenue Cabinet maintained that American Life was not entitled to any credits for the taxes it had paid against any other taxes it may owe in the future.

This was the basis of the Revenue Cabinet’s motion to dismiss at the Board and the Board agreed. The circuit court also agreed with the Revenue Cabinet and this appeal followed.

The questions involved in the present case deal with the construction and interpretation of statutes. In essence, American Life contends that the Board and the circuit court have misapplied the law to the facts. Therefore, our review of the circuit court’s decision is de novo. Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth of Kentucky, Transportation Cabinet, Ky., 983 S.W.2d 488, 490-491 (1998); Epsilon Trading Co., Inc. v. Revenue Cabinet, Ky.App., 775 S.W.2d 937, 940 (1989).

The statutes at issue here, KRS 134.580 and KRS 134.590, provide for refunds from the Commonwealth for the overpayment of taxes or payment of taxes when no taxes were due. KRS 134.580, which American Life argues applies to its refund application, allows a taxpayer to receive a refund of overpaid taxes if the refund is applied for within 4 years of the date the return was to be filed or the date the money was paid into the state treasury, whichever is later. KRS 134.580(4). It excepts ad va-lorem taxes and taxes paid that may be held unconstitutional. KRS 134.580(2) and KRS 134.580(5).

KRS 134.590 allows a refund for improperly paid ad valorem taxes and taxes assessed pursuant to a statute held unconstitutional. KRS 134.590(1). A two-year statute of limitations is imposed on those applying for such a refund. KRS 134.590(2).

American Life makes two arguments that KRS 134.590 should not apply. First it contends that the tax imposed by KRS 136.320 is not an ad valorem tax and second it argues that KRS 136.320 has not been held unconstitutional. Therefore, it reasons, KRS 134.590’s two-year statute of limitations is inapplicable.

If the tax is, in fact, an ad valorem tax, as contended by the Revenue Cabinet, then there is no need to reach the question of whether KRS 136.320 has impliedly been held unconstitutional by the decision in St. Ledger with respect to the characterization of certain property as intangible personal property or exempt intangible personal property.

American Life contends that the tax imposed by KRS 136.320 is not an ad valo-rem tax primarily citing to the legislative history of the statute and the fact that but for the provisions of KRS 136.320 it would be subject to various other types of taxes such as income tax and license taxes. It also notes that the statute states the tax is imposed “in lieu of’ other types of taxes.

The character of a tax is determined by its operation, effect, and incidents, not by the label the legislature appends in the statute. Reynolds Metal Co. v. Martin, 269 Ky. 378, 107 S.W.2d 251, 259 (1937); City of Lebanon Junction v. Celico Partnership, Ky.App., 80 S.W.3d 761, 764 (2001); Circle “C” Coal Co., Inc. v. Commonwealth, Ky.App., 628 S.W.2d 883, 885 (1981). KRS 136.320 does not specifically identify what type of tax is being imposed so we must determine whether it is an ad valorem tax from its operation and effect.

An ad valorem tax is one that is levied on property at a certain rate upon its value and literally means “according to the worth.” Revenue Cabinet v. Estate of Field, Ky.App., 864 S.W.2d 930, 932 (1993). See also 71 Am.Jur.2d State and Local Taxation § 18. It is commonly levied on a percentage or rate of the value of property on a regular basis. KRS 136.320 requires the valuation of certain types of property and assesses a tax annually at a rate of 70 cents on each $100.00' of the fair cash value of taxable capital and one-tenth of one cent on each $100.00 of the fair cash value of taxable reserves of American Life.

Despite American Life’s contention that this “capital stock tax,” as the parties refer to it, is not a tax on property, or, in other words, an ad valorem tax, KRS 136.320 quite clearly imposes a tax that operates as one classically considered an ad valo-rem tax. We also note that in case law “capital stock” is consistently held to comprise the property of a corporation. See e.g., Luckett v. Tennessee Gas Transmission Co., Ky., 331 S.W.2d 879, 880 (1960); Spang Stores, Inc. v. Commonwealth, 468 Pa. 63, 68 360 A.2d 180, 183 (1976); Commonwealth v. New York, P. & O.R. Co., 188 Pa. 169, 189, 41 A. 594, 602 (1898).

We conclude that the tax imposed by KRS 136.320 in its operation, effect, and incidents is an ad valorem property tax. Therefore, the two-year statute of limitations contained in KRS 134.590 is applicable and the Revenue Cabinet correctly denied a refund for tax years prior to 1995. Since we have held that the tax in KRS 136.320 is an ad valorem tax there is no need to address whether or not KRS 186.320 must specifically be held unconstitutional for the statute of limitations in KRS 134.590 to apply or can be impliedly held unconstitutional by the ruling in St. Ledger:

American Life next argues that even if the two-year statute of limitations applies, it is still entitled to receive credits for the overpayments it has made under the theories of equitable recoupment or set-off.

It points out that the Revenue Cabinet has a policy, Revenue Policy 42P010, that allows credits to taxpayers who have overpaid their income tax and shows that the Revenue Cabinet views credits differently than it does refunds. The Revenue Cabinet responds that this policy is only in place for individual income taxes and that even if we hold the policy applicable to American Life, the policy itself would still bar what American Life seeks to do because it prohibits credits from one tax year being transferred to another tax year. We do not view the existence of the policy to be determinative since a review of the case law establishes that American Life is not entitled to the application of either equitable recoupment or set-off.

The doctrine of equitable recoupment is in the nature of a defense. Its operation allows the taxpayer to claim re-coupment for overpayment of taxes when the taxing authority institutes a suit against the taxpayer for underpayment of taxes whether or not the statute of limitations has run on claiming a refund for the overpayment. United States v. Dalm, 494 U.S. 596, 605, 110 S.Ct. 1361, 1366, 108 L.Ed.2d 548 (1990)(quoting Bull v. United States, 295 U.S. 247, 262, 55 S.Ct. 695, 700, 79 L.Ed. 1421 (1935)). Equitable recoupment only applies where “the Government has taxed a single transaction, item, or taxable event under two inconsistent theories.” Dalm, 494 U.S. at 605, 110 S.Ct. at 1367, 108 L.Ed.2d 548, n. 5.

For example, if the Revenue Cabinet assessed an income tax and then determined that the same money, property or other thing of value should have been subject to estate taxes during the same taxable period, then the taxpayer could appropriately argue for the doctrine of equitable recoupment to be applied. Here, American Life wishes to have the doctrine operate so that it may take overpayments from the tax periods of, presumably 1988 to 1994, and have them applied to its future tax liabilities.

As stated above, the case law does not support the application of equitable re-coupment in the circumstances urged by American Life. See Dysart v. United States, 169 Ct.Cl. 276, 340 F.2d 624, 627 (1965). And, while it is arguable that Kentucky has implicitly recognized equitable recoupment (see City of Columbus v. Bank of Columbus, Ky., 122 S.W. 835, 836 (1909)), it has also been held that if equitable relief is not provided for by statute then it is unavailable. Commonwealth of Kentucky, Revenue Cabinet v. Gossum, Ky., 887 S.W.2d 329, 335 (1994). In any event, American Life is not entitled to its application here.

Likewise, the doctrine of set-off is not applicable. Set-off is also in the nature of a defense but is one available to the taxing authority. Its genesis is often identified as Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293 (1932). In that case the United States Supreme Court held that when a taxpayer institutes an action for a refund the government may defend by asserting that the taxpayer has not, in fact, overpaid his taxes. The court stated:

An overpayment must appear before refund is authorized. Although the statute of limitations may have barred the assessment and collection of any additional sum, it does not obliterate the right of the United States to retain payments already received when they do not exceed the amount which might have been properly assessed and demanded.

Id. 284 U.S. at 283, 52 S.Ct. at 146. See also, Dysart, supra 169 Ct.Cl. 276, 340 F.2d at 627 (equitable recoupment not to be confused with the broader defense of lack of overpayment); Fisher v. United States, 80 F.3d 1576, 1579-1580 (Fed.Cir.1996).

The fact that the Revenue Cabinet has argued for set-off for itself in another case before this Court, (see GTE South, Inc. v. Commonwealth of Kentucky, Revenue Cabinet, No.2003-CA-000773-MR, 2004 WL 690653 (Ky.App. April 2, 2004)), does not prohibit the Revenue Cabinet from maintaining in this case that the doctrine is inapplicable. The right to raise the issue of set-off is not subject to equitable considerations and may be applicable in one case but not another. Dysart, supra 169 Ct.Cl. 276, 340 F.2d at 627.

In sum, we hold that the Jefferson Circuit Court correctly determined that the two-year statute of limitations applies to American Life’s suit for a refund, and that the doctrines of equitable recoupment and set-off are not available to it under the facts of this case. The judgment of the circuit court is affirmed.

ALL CONCUR.

      . Citations to KRS 136.320 are to the statute as it was in effect at the time American Life applied for a refund.

      . We do observe that St. Ledger stated that its original decision concerned the constitutionality of ad valorem tax provisions. St. Ledger v. Commonwealth of Kentucky Revenue Cabinet, Ky., 942 S.W.2d 893, 895 (1997).


source: Caselaw Access Project

author: HENRY, Judge.

license: Public Domain

text:
    METRO MEDICAL IMAGING, LLC, Appellant, v. COMMONWEALTH of Kentucky, Cabinet for Health Services, Certificate of Need Office; Baptist Healthcare System, Inc.; Norton Hospitals, Inc.; Caritas Health Services, Inc.; and Jewish Hospital Healthcare Services, Inc., Appellants.
    No. 2004-CA-001463-MR.
    Court of Appeals of Kentucky.
    Sept. 16, 2005.
    Bruce A. Brightwell, Louisville, KY, for appellant.
    Michael D. Baker, Lexington, KY, Marian J. Hayden, Frankfort, KY, Mathew R. Klein, Jr., Covington, KY, for appellee.
    Before COMBS, Chief Judge; HENRY and TACKETT, Judges.
   OPINION

HENRY, Judge.

Metro Medical Imaging (MMI) operates diagnostic imaging facilities at locations on Dupont Circle, Newburg Road and Dixie Highway in Louisville. The Cabinet for Health and Family Services determined that MMI is not exempt from either the Certificate of Need or licensing requirements of KRS Chapter 216B, and must therefore apply for a Certificate of Need and obtain a license in order to continue in operation. MMI attempted to appeal the Cabinet’s ruling pursuant to the provisions of KRS 216B.115(2).

The pertinent facts of the case are not in dispute, and only one issue is presented on appeal; that is, whether the Franklin Circuit Court properly dismissed MMI’s appeal for failure to comply with the requirements of the statute. MMI filed a petition for review of the Cabinet’s ruling in the FranHin Circuit Court within thirty days after notice of the final decision, but failed to cause summons to be issued on the petition until the thirty-fourth day after notice of the final decision. The circuit court granted the appellees’ motion to dismiss, and this appeal followed.

KRS 216B.115 says, in its entirety:

(1) An appeal to the Franklin Circuit Court may be taken from any final decision of the cabinet with respect to a certificate-of-need application, a certificate of need, or a license, by any party to the proceedings.
(2) An appeal may be taken by filing a petition for review in the Franklin Circuit Court within thirty (30) days after notice of the final decision unless a request for reconsideration has been filed, in which case the petition shall be filed within fifteen (15) days of the cabinet’s decision not to reconsider or notice of its decision on reconsideration. The petition shall state completely the grounds upon which the review is sought and shall assign all errors relied upon. The petitioner shall serve a copy of the petition to each person who was a party to the proceedings. Summons shall be issued upon the petition directing the adverse party or parties to file an answer within twenty (20) days after service of summons. The cabinet shall, upon being served with the summons and within thirty (30) days thereafter, file a copy of the record, duly certified by the secretary, the cost of the record to be taxed as costs upon appeal. In lieu of filing of the record, an abstract thereof may be filed if all parties to the appeal agree. (Emphasis added).

As the Franklin Circuit Court noted in its Opinion and Order, the dispute in this case concerns the interpretation and application of KRS 216.115. We review such matters de novo. Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transportation Cabinet, 983 S.W.2d 488, 490-91 (Ky.1998), citing Reis v. Campbell County Bd. of Educ., 938 S.W.2d 880, 886 (Ky.1996) and Epsilon Trading Co., Inc. v. Revenue Cabinet, 775 S.W.2d 937, 940 (Ky.App.1989).

It is clearly established in our law that appellate review of the acts of administrative agencies is not a matter of right, but of legislative grace. Therefore “[w]hen grace to appeal is granted by statute, a strict compliance with its terms is required.” Bd. of Adjustments of the City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky.1978). If MMI failed to comply with statutory requirements no appeal is possible because “the court lacks jurisdiction or has no right to decide the controversy.” Id. (Citations omitted).

MMI concedes that the statute requires that a summons be issued, but argues that there is no requirement that it be issued within thirty days after notice of the final decision. In MMI’s view it is necessary for us to add words to the statute supplying the requirement of causing summons to be issued within thirty days, which the rules of statutory construction will not permit us to do. We disagree.

In this case MMI caused summons to be issued four days after the time to file an appeal had expired, after the Cabinet filed a motion to dismiss. The dispositive question in the case can be put as: Does the phrase “[sjummons shall be issued upon the petition” mean that summons must be issued within the same time period as the petition for review, or may summons be issued at a later time? Or, to be more succinct, what does “upon the petition” mean in this statute? The circuit court concluded that by the “plain language” of the statute, summons is required to be issued within the thirty-day period. The court gave no authority in support of its conclusion.

The discussion found at Com., Transp. Cabinet, Dept. of Highways v. City of Campbellsville, 740 S.W.2d 162, 164 (Ky.App.1987), while not dispositive, is informative on the issue. As discussed there, “an appeal to the circuit court from an order of an administrative agency is not a true appeal but rather an original action.” Citing KRS 23A.010(4) and Sarver v. County of Allen, 582 S.W.2d 40 (Ky.1979). That being true, the actions necessary to take an appeal from an administrative agency to the circuit court are those actions necessary to commence a civil action. “Under our system, civil actions are commenced by (1) the filing of a complaint (petition), and (2) the issuance of summons (or warning order) in good faith.” City of Campbellsville at 164, citing KRS 413.250 and CR 3. If the action is commenced by the filing of the petition and the issuance of summons, and only one time period is specified, it must follow that both actions must be taken within the period of time provided in the statute. We also particularly note the language of CR 3: “A civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.” (Emphasis added). In the rule it is clear that “thereon” refers to the complaint. The wording admits of only one interpretation: that is, that an action is commenced by fifing a complaint, and issuing a summons or warning order on that complaint. It is clear to us that “upon the petition” in KRS 216B.115(2) means the same thing as “thereon” in CR 3.

In City of Campbellsville the court held that the fifing of a petition and the issuance of summons commenced the action. Once the action was properly commenced, delay in serving the proper party was not fatal to the action. City of Campbellsville at 164. On the other hand, failure to cause the summons to be timely issued bars a cause of action even if the complaint has been timely filed. CR 3; Delong v. Delong, 335 S.W.2d 895 (Ky.1960); Eades v. Clark Distrib. Co., 70 F.3d 441 (6th Cir.1995), cert. denied, 517 U.S. 1157, 116 S.Ct. 1545, 134 L.Ed.2d 649 (1996). Here the action was not commenced within the prescribed time, leaving the circuit court without jurisdiction over the case. Bd. of Adjustments of the City of Richmond v. Flood at 2.

The Opinion and Order of the Franklin Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes.

      . Kentucky Rules of Civil Procedure.


author: HUDDLESTON, Senior Judge.

text:
    William ROBERTS, Appellant, v. FAYETTE COUNTY BOARD OF EDUCATION, Appellee.
    No. 2004-CA-001201-MR.
    Court of Appeals of Kentucky.
    Sept. 30, 2005.

      Beth A. Bowell, Jeffrey S. Walther, Walther, Roark, Gay & Todd, PLC, Lexington, KY, for appellant.
    Robert L. Chenoweth, Chenoweth Law Office, Frankfort, KY, for appellee.
    Before GUIDUGLI and TAYLOR, Judges; HUDDLESTON, Senior Judge.

      . Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Ky.Rev.Stat. (KRS) 21.580.

   OPINION

HUDDLESTON, Senior Judge.

William Roberts appeals from a summary judgment granted to the Fayette County Board of Education. Roberts had filed suit alleging that the Board violated Kentucky Revised Statutes (KRS) 161.100 when it failed to employ him, a qualified special education teacher, and instead hired emergency certified teachers.

Roberts is certified to teach special education by the Kentucky Education Professional Standards Board. He worked as a special education facilitator and teacher at Lafayette High School in Lexington, Kentucky, on a limited contract basis, for four years. A teacher becomes eligible for a continuing contract (or tenure) after he or she has been employed for four years in the same district within a six-year period. Roberts’ fourth year of employment with the Fayette Board was in 2001-2002. Had he been hired for the 2002-2003 school year, he would have become eligible for tenure.

In November 2001, however, two of Roberts’ students filed complaints against him, alleging harassment. One student claimed that Roberts pulled him up by his shirt and pinned him against the classroom wall with a table. The other student claimed that Roberts squeezed his hand, pulled his hair, yelled at him, tapped him on the forehead with the palm of his hand and yelled at him that “he had five F’s [a reference to the student’s grades].” The father of one of the students contemplated bringing criminal charges of harassment against Roberts.

Dr. Robin Fankhauser, who was then the Superintendent of the Fayette Board, suspended Roberts for thirty days with pay while an investigation into the students’ allegations was conducted by John Toye, who was then Director of the Department of Law Enforcement for Fayette County Public Schools. His report to Fankhauser concluded that

Teacher Roberts is obviously frustrated with some of his students and uses unprofessional and juvenile methods when dealing with defiant or disorderly students. He resorts to yelling and using a physical approach. In many instances the problem escalates instead of subsiding and becoming under control. If Roberts intends to remain in the special education field he should be required to be re-trained in dealing with defiant, disorderly youth and should also be fully trained in safe physical management.

When the investigative report was completed, Fankhauser met with Roberts and Toye, on December 17 or 18, 2001. Also present at the meeting were Ken Cox, Director of High Schools, and Mike McKenzie, the principal of Lafayette High School. Fankhauser thereafter addressed a letter to Roberts, concluding that he had used “inappropriate strategies to refocus students” and that he had violated the Family Education Rights and Privacy Act (FERPA) by discussing a student’s grades in front of other students. Fank-hauser directed Roberts to create a “professional growth plan” to address these issues. The letter also directed him not to touch or yell at students in the future. Roberts claims that he did not understand what this directive to create a new growth plan entailed, and wrote a letter to Fank-hauser expressing his confusion, but that Fankhauser did not respond to his request for clarification. Ultimately, a professional growth plan for Roberts was created in February 2002, with the assistance of other administrators. Meanwhile, on January 14, 2002, Roberts had filed a grievance in accordance with formal Board policies. The grievance voiced concerns over the investigation of the student complaints and the lack of support provided by the district.

During the months of February and March 2002, Roberts was evaluated by Principal McKenzie (this appears to have been a routine evaluation) and found to be in need of further improvement in several areas of professional development. Although the evaluation has not been included in the record, Roberts’ deposition testimony indicates that McKenzie found that Roberts was not meeting several of the standards listed on the evaluation form. In his summative evaluation (also not in the record), McKenzie indicated that the standards that were not met created serious concerns about the possibility of Roberts obtaining tenure, and he recommended that Roberts not be rehired for the next school year.

Roberts formally appealed Principal McKenzie’s evaluation on March 22, 2002. On April 16, 2002, the Certified Evaluation Appeals Panel held a hearing into the matter, but was unable to reach a consensus concerning the status of Roberts’ Final Summative Evaluation. The record contains no details regarding the appeals process, except for a memorandum from the chair of the panel stating that

[a]fter deliberation, the appeals panel was unable to reach consensus, concerning the status of Mr. Roberts’ Final Summative Evaluation. The panel voted 2 votes for option “C,” and 1 vote for option “B.” Therefore, by a 2 to 1 vote, the panel recommends that the superintendent of schools conduct further investigation concerning the Final Summative Evaluation of Mr. Roberts (Option “C”).

It is unclear from the record what option “B” was.

Roberts submitted a letter of resignation on April 30, 2002. In his deposition, he explained that it was his understanding that the Board has a policy that if a teacher’s limited contract is nonrenewed for cause, that teacher will never be eligible to be rehired within the school district. Because Roberts had received an unsatisfactory evaluation from his principal with the attendant recommendation that he not be renewed, he decided to resign. He believed, and testified that various officials within the district had indicated to him, that his resignation meant that he would still be eligible to teach in the Fayette County district. He stated in his deposition that “[w]hat was presented to me was that if I resigned from my position at Lafayette, that I would be left alone so that I could be rehired and given that opportunity to work with other people within the district.” He also admitted, however, that no one had guaranteed him a position for the following year.

He then began to apply for vacant teaching positions with the Fayette Board for the 2002-2003 and 2003-2004 school years, but he was not hired for any of them. Some of these numerous vacancies (over forty in the 2002-2003 school year) were filled instead by emergency certified personnel, rather than by people like Roberts who were certified special education instructors. KRS 161.100 provides that a school district may hire such individuals with “emergency” certification when “it is impossible to secure qualified teachers for a position.”

The statute provides:

When a district board of education satisfies the Education Professional Standards Board that it is impossible to secure qualified teachers for a position in a school under the control of the district board, the Education Professional Standards Board may issue emergency certificates to persons who meet the qualifications determined by the Education Professional Standards Board for emergency certificates. An emergency certificate shall be valid only for the specific job for which issued and for the current school term.

Meanwhile, however, Roberts was able to find employment on a limited contract basis with Clark County Public Schools for the 2002-2003 year, as a special education teacher. His salary was approximately $3,000.00 less than he had earned in Fay-ette County.

On November 15, 2002, Roberts filed a complaint against the Fayette County Board of Education in Fayette Circuit Court, alleging that the Board had violated KRS 161.100 when it hired persons with emergency certification to teach special education, and did not hire him, a certified applicant. He asked for damages, injunc-tive relief including an order directing the Board to comply with the statute requiring it to hire certified applicants before persons with emergency certification, costs and fees, and a trial by jury.

The Fayette Board ultimately filed a motion for summary judgment, arguing that it was protected from suit by governmental immunity, and that it was in any case the wrong defendant. In the alternative, the Board also cited to an administrative regulation that defines “qualified teacher” as

a teacher who holds the appropriate certification for the position unless the superintendent of the émploying school district has documented evidence that the teacher is unsuitable for appointment.

In its opinion and order granting summary judgment, the circuit court held that Roberts had failed to state a claim under KRS 161.100 because there was sufficient documentation for the superintendent to determine that Roberts was “unsuitable for appointment” pursuant to 16 KAR 2:120 and therefore not a qualified teacher pursuant to KRS 161.100. Alternatively, the court also found that the board was immune from claims such as Roberts’ under the doctrine of governmental immunity. This appeál followed.

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The circuit court must view the record “in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” On appeal, our duty is to determine “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving par-, ty was entitled to judgment as a matter of law.”

We are hampered in our review of this case by the incompleteness of the record. Both parties make references to exhibits that were attached to Roberts’ deposition, but these exhibits are not in the record provided to this Court. It is the duty of the appellant to see that the record is complete on appeal. To the extent that the record is incomplete, the reviewing court must presume that the omitted portions support the summary judgment.

We turn first to the question of whether the Board is protected by the doctrine of governmental immunity. Although we agree with the circuit court that the Board enjoys immunity for its governmental functions under the holding in Yanero v. Davis, we note that the Supreme Court was careful in that case to discuss governmental immunity specifically in the context of “limiting the imposition of tort liability on a government agency.” Roberts has aptly pointed out that his claim for injunc-tive relief, directing the Board to comply with the statute, sounds in equity rather than in tort. We note also that the doctrine of governmental immunity was not invoked in a recent, factually-similar case from the Supreme Court.

Roberts argues that the genuine issue of material fact which should have barred the grant of the motion for summary judgment is whether he was unsuitable for employment in the District. Roberts acknowledges that the superintendent may determine that a certified teacher is not “qualified” pursuant to 16 KAR 2:120. He nonetheless argues that the Board never informed him he was “unsuitable” and that this term was only used after he made his allegation that the Board had acted in violation of KRS 161.100. Roberts contends that the evidence establishes that there is a genuine issue of material fact regarding his qualifications. He points out that the investigation into the student complaints did not lead to disciplinary action against him. He warns that if complaints by students were sufficient to disqualify certified teachers from further employment, every teacher in the district could be subject to dismissal. In his view, a jury should have been permitted to determine whether he was unsuitable for appointment.

Roberts has provided no evidence, however, to suggest that the superintendent abused her discretion in determining that he was not a qualified candidate, nor that the Board violated KRS 161.100 by implementing her recommendations. “[A] party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial.”

In fact, the record is replete with evidence that Roberts could indeed be found unsuitable for appointment: the student complaints of harassment; the findings of the Certified Evaluation Appeals Board that the investigation concerning his final summative evaluation should be continued; and the recommendation by Principal McKenzie that he not be rehired. Roberts has simply failed to produce some affirmative evidence that the superintendent abused her discretion in refusing to recommend Roberts to the Board for appointment. As the circuit court aptly stated,

Roberts has not alleged in his Verified Complaint that the superintendent failed to have documented evidence supporting a finding he was unsuitable for employment. His resignation was submitted in the face of knowledge his immediate supervisor had recommended he not be renewed for employment and upon learning of his likely receipt of a notice of non-renewal based upon the events during the 2001-02 school year. This documentation which recommended against contract renewal certainly was sufficient for the superintendent to determine Roberts was “unsuitable for appointment” despite having a teaching certificate and was therefore not a qualified teacher as used and defined in KRS 161.100. Roberts has failed to state a claim under KRS 161.100. That being the sole cause of action alleged in the Verified Complaint, Board is entitled to judgment as a matter of law and the Verified Complaint be dismissed.

Roberts voluntarily resigned his position, on the understanding that his principal’s recommendation that his contract not be renewed would prevent him from getting another teaching position in the Fayette district. By resigning, he believed he had preserved his opportunity to be employed by another school in the district. Had he not resigned, however, he could have requested the superintendent to provide the grounds upon which the recommendation of nonrenewal was based, pursuant to KRS 161.750, which states in pertinent part:

(1) Any teacher employed under a limited contract may be reemployed under the provisions of KRS 161.720 to 161.810 for the succeeding school year at the same salary, ... upon notification of the board by the superintendent of schools that the contract of the teacher is renewed.
(2) If the superintendent does not renew the contract he shall present written notice to the teacher that the contract will not be renewed no later than April 30 of the school year during which the contract is in effect. Upon receipt of a request by the teacher, the superintendent shall provide a written statement containing the specific, detailed, and complete statement of grounds upon which the nonrenewal of contract is based.

Had the superintendent failed to produce such a written statement, Roberts would have had a potential cause of action to enforce the provisions of KRS 161.750(2). As it is, Roberts appears to have no statutory right to learn the superintendent’s reasons for not recommending him. As the circuit court noted, “Roberts did not have tenure. He had no expectation of employment after he resigned. No contract or right to contract existed between Roberts and the Board.” We look to the case of Bowlin v. Thomas, in which a non-tenured teacher who was not rehired argued that the school board had acted arbitrarily in failing to re-employ him, and that he was entitled to a judgment reinstating him as a teacher. We stated that “[i]f Bowlin had been a tenured teacher serving under a continuing contract, the school board could have terminated his contract only for certain statutory causes.” But because Bowlin was not tenured, he had no constitutional right to a statement of the reasons for the school board’s decision not to re-hire him for the next school year, or a right to a hearing to contest that decision.

Furthermore, as in Bowlin’s case, Roberts has not alleged that the decision not to employ him was based on a constitutionally-prohibited reason, such as race, sex, religion, place of birth, exercise of the right of free speech or because of his political activities. So long as it is not based upon a constitutionally impermissible reason, a decision to terminate the employment of a public officer or employee does not raise any issue of arbitrariness.

Because Roberts has failed to provide any material facts to support his contention that the Board violated KRS 161.100, and because his status in relation to the Board does not implicate any constitutional concerns, or entitle him to any statutory relief, the judgment is affirmed.

ALL CONCUR.

      ."The term ‘limited contract’ shall mean a contract for the employment of a teacher for a term of one (1) year only or for that portion of the school year that remains at the time of employment.” KRS 161.720(3).

      . See KRS 161.740(l)(b).

      . 20 U.S.C.A. § 1232g.

      . The letter is cited as an exhibit to Roberts' deposition, but it is not in the record.

      . The growth plan is not in the record.

      . The grievance is not in the record.

      . 16 Ky. Adm. Reg. (KAR) 2:120 (emphasis supplied).

      . Ky. R. Civ. Proc. (CR) 56.03.

        . Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991) (citations omitted).

      . Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996).

      . Commonwealth, Dept. of Highways v. Richardson, 424 S.W.2d 601, 603 (Ky.1968).

      . Id.

      . 65 S.W.3d 510 (Ky.2001).

      . Id. at 519, quoting 57 Am.Jur.2d Municipal, County, School and State Tort Liability § 10 (2001).

      . See Young v. Hammond, 139 S.W.3d 895 (Ky.2004), in which a teacher sued her superintendent and school board for violating KRS 160.345 by refusing to forward her application for a principalship to the district council.

      . Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky.1992).

      . Emphasis supplied.

      . See Phillips v. Board of Ed. of Muhlenberg Cty., 580 S.W.2d 730 (Ky.App.1979).

      .548 S.W.2d 515 (Ky.App.1977) (superseded by Phillips, supra note 19, at 732; under KRS 161.750, a later statute, Bowlin would have had the right to a written statement from the superintendent containing the grounds upon which the nonrenewal of his contract was based. Unlike Roberts, however, Bowlin had not resigned).

      . Id. at 518.

      . Id.

      . Id. at 519.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Maurice T. POINDEXTER, Appellant.
    No. ED 84384.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 25, 2005.
    Timothy J. Forneris, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Maurice Poindexter (Defendant) appeals from the judgment upon his convictions for assault in the first degree, Section 565.050, RSMo 2000, armed criminal action, Section 571.015, RSMo 2000, and possession of a defaced firearm, Section 571.050, RSMo 2000, for which Defendant was sentenced as a prior and persistent offender to concurrent terms of thirty years for assault and ten years for armed criminal and a concurrent term of 180 days in the St. Louis Medium Security Institution for possession of a defaced firearm. On appeal, Defendant argues the trial court erred in (1) failing to order a competency examination, (2) failing to question Defendant regarding his right not to testify on his own behalf, (3) denying Defendant’s motion in limine and in permitting the State to impeach Defendant with a prior criminal conviction, and (4) refusing to submit Defendant’s proposed Instruction No. A. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Louis FELTON, Appellant.
    No. ED 85011.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 25, 2005.
    Maleaner Harvey, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Defendant/Appellant Louis Felton (“Fel-ton”) appeals from the judgment of the Circuit Court of the City of St. Louis, after a jury found him guilty, as a prior and persistent offender, of Second-Degree Trafficking, a Class A felony, in violation of Section 195.223 RSMo. (2000). Following Felton’s conviction, the Honorable Michael B. Calvin sentenced him to twelve years of imprisonment, without the possibility of probation or parole.

No error of law appears and an opinion would have no precedential value. The parties have been given a memorandum for their information only, setting forth the reasons for this order. The judgment is AFFIRMED pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Antwan SCOTT, Appellant.
    No. ED 84785.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 25, 2005.
    Craig Allan Johnston, Columbia, MO, for appellant.
    Deborah Daniels, Dora A. Fichter, co-counsel, Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Antwan Scott (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury found him guilty of one count of second-degree trafficking drugs other than methamphetamine and containing more than six grams of cocaine base, in violation of Section 195.223, and one count of possession of a controlled substance, marijuana, with intent to sell, in violation of 195.211. The trial court found Defendant to be a prior and persistent drug offender, subject to an extended term of imprisonment, and sentenced Defendant to concurrent terms of eleven years’ imprisonment on the trafficking count and one year’s imprisonment on the possession count.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no jurisprudential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 30.25(b).

      . All statutory references are to RSMo 2000.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Ricky Pittman SMITH, III, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26795.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 26, 2005.

      Rosalynn Koch, Columbia, MO, for mov-ant-appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Movant, Ricky Smith, was charged by information with one count of class D felony for violating a full order of protection in violation of section 445.085. On June 17, 2002, Movant pled guilty to the charged offense. On that date, the court accepted Movant’s guilty plea, which called for a suspended imposition of sentencing with the understanding that Movant would reside in the State of Ohio with his mother. Before accepting the plea, the trial court asked whether the State of Ohio would accept Movant for probation; the court then accepted the plea and set the sentencing date for July 11, 2002. Movant failed to appear before the court on July 11, 2002, because his mother refused to bring him back from Ohio for the sentencing. The court was informed that Movant was in Ohio and Movant cooperated by waiving extradition back to Missouri.

Movant did appear for sentencing with counsel one month later on August 12, 2002. At the time of sentencing, Movant’s counsel requested a suspended execution of sentence. The court imposed a sentence of three years in the Department of Corrections, suspended execution of the sentence, and placed Movant on probation for a period of three years. On October 7, 2002, Movant appeared before the court for a probation violation hearing and his probation was revoked.

In January of 2004, Movant filed a pro se motion to vacate, set aside or correct the judgment or sentence pursuant to Rule 24.035, citing ineffective assistance of counsel. The court subsequently appointed counsel and an amended motion was filed. In December of 2004, the motion court issued findings of fact and conclusions of law denying completely Movant’s post-conviction motion on the basis of an application of the escape rule. Movant appeals from the order and judgment of the motion court denying his motion without a hearing.

In his first point, Movant argues the motion court erred in denying Mov-ant’s post-conviction relief as to his claim of ineffective assistance of counsel at the sentencing hearing because the escape rale does not apply to post-capture error. In fact, the State concedes that the motion court erred in applying the escape rule to Movant’s claim that his counsel was ineffective at the sentencing hearing in that the escape rule does not apply to post-capture error. We agree. See Robinson v. State, 854 S.W.2d 393, 396 (Mo. banc 1993) (holding the escape rale should not be used to dismiss challenges to post-capture errors). We thus reverse the denial of Movant’s points concerning ineffective assistance of counsel at the sentencing hearing and remand for adjudication on claimed post-capture errors.

We also find merit to Movant’s second point that the court erred in not considering his claims of ineffective assistance of counsel prior to his sentencing due to the escape rule. Movant argues that the trial court abused its discretion in the application of the escape rule because the failure of Movant to appear at the first sentencing hearing did not hinder the administration of justice.

Appellate review of denial of a post-conviction motion is limited to determining whether the motion court clearly erred in its findings of fact and conclusions of law. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). The findings and conclusions of the post-conviction court are clearly erroneous if a review of the entire record leaves the reviewing court with the definite and firm impression that a mistake has been made. Williams v. State, 67 S.W.Sd 767, 768 (Mo.App. S.D.2002). Whether or not the appellate court should apply the escape rule depends on whether the escape adversely affects the criminal justice system. State v. Brown, 974 S.W.2d 630, 631 (Mo.App. S.D.1998). The escape rule should be applied in order to: (1) maintain control over the defendant before making a decision on appeal; (2) curtail administrative problems caused by the escapee’s absence; (3) prevent prejudice to the State in the event of a remand for a new trial; (4) prevent defendants from selectively abiding by court decisions; (5) discourage escape; (6) encourage voluntary surrender; (7) preserve respect for the criminal justice system; and (8) promote the dignified operation of the appellate courts. State v. Hickerson, 66 S.W.3d 787, 789 (Mo.App. S.D.2002).

Movant’s failure to appear at the sentencing hearing in July caused a month’s delay in sentencing. In Missouri, the courts have not created a threshold or bright line to determine what period of time needs to pass before the escape rule should apply. For example, this Court found that a fifteen-day delay in sentencing did not require application of the escape rule. State v. Janson, 964 S.W.2d 552, 554 (Mo.App. S.D.1998). On the other hand, in Holmes v. State, 92 S.W.3d 193 (Mo.App. W.D.2002), the court found that a period of three weeks was an acceptable period in which to apply the escape rule when the defendant fled the courthouse during the trial with stolen money, which had been received into evidence. Id. at 196. Likewise, a delay as little as six weeks has been enough to apply the escape rule when a defendant failed to appear for sentencing. State v. Bailey, 848 S.W.2d 611, 612 (Mo.App.E.D.1993).

Considering that Movant was being supervised in the State of Ohio, that he was dependent upon his mother for transportation, that the State does not claim any prejudice in the event of a remand for a new hearing, and that Movant voluntarily surrendered, we find an abuse of discretion in the refusal to review Movant’s claims on their merits based on an application of the escape rule. In contrast to cases where the escape rule was applied, in this instance, the location of Movant was known to counsel and court and the record does not indicate that Movant presented a threat to public order while outside the court’s jurisdiction. Additionally, the court must hear Movant’s claims regarding ineffective assistance of counsel at the sentencing. Therefore, we reverse the judgment denying Movant’s Rule 24.035 motion without a hearing and remand for a hearing on his motion.

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

      . All references to statutes are to RSMo 2000, unless otherwise specified.

      . All rule references are to Missouri Court Rules (2005), unless otherwise specified.


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    Donna BOWAN, by and through Her Next Friend and Mother, Audrey BOWAN, Respondent, v. GENERAL SECURITY INDEMNITY COMPANY OF ARIZONA, and Express Medical Transporters, Appellants.
    Nos. ED 85145 & ED 85148.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 16, 2005.
    Application for Transfer to Supreme Court Denied Sept. 22, 2005.

      Phillip C. Rouse, Steven H. Mustoe, Chris Stucky, Kansas City, MO, for Appellant.
    James P. Leonard, Devereaux, Stokes, Nolan & Fernandez, P.C., St. Louis, MO, for Respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellants, General Security Indemnity Company of Arizona (“GSIC”) and Express Medical Transporters (“EMT”), appeal from the judgment of the Circuit Court of the City of St. Louis in favor of respondent, Donna Bowan, by and through her next friend and mother, Audrey Bow-an (“Bowan”). We affirm.

Bowan, who is now deceased, was a physically and mentally disabled individual. EMT, a non-emergency transportation company, regularly transported Bowan to and from her place of work.

On August 17, 2001, Bowan was a passenger in a fifteen passenger van owned by EMT and driven by EMT employee Larry Briggs. The van was involved in a collision with a pickup truck driven by Amy Jo Demery. At the time of the accident, Bowan was not wearing a seat-belt. Bowan sustained injuries in the accident rendering her a paraplegic. As a result of her injuries, Bowan was forced to move into a nursing home.

Bowan sued EMT and Demery for injuries she sustained in the collision. Bowan alleged that Demery, EMT, and Briggs were negligent in the operation of their respective vehicles and that EMT and Briggs were negligent in failing to determine that Bowan was not wearing a seat-belt before the collision.

At the time of the collision, EMT was insured under two different policies. EMT had a Commercial General Liability (“CGL”) policy with GSIC. The CGL policy had liability limits of $1,000,000. EMT also had a Business Auto policy with GSIC, which also had liability limits of $1,000,000. EMT’s Business Auto policy further provided Underinsured Motorist (“UIM”) coverage, which had liability limits of $1,000,000.

Bowan was an “insured” under EMT’s Business Auto policy, which entitled her to receive UIM benefits under certain circumstances. Before trial, Bowan entered into an agreement with EMT pursuant to section 537.065 RSMo (2000). According to this agreement, Bowan agreed not to execute or levy against the personal -assets of EMT, but rather to pursue collection of any judgment through EMT’s CGL and Business Auto policies. In exchange for Bowan’s promise, GSIC paid Bowan $930,000 through “The Donna Bowan Special Needs Trust.” GSIC also promised that $30,000 would be held in trust for the benefit of “The Donna Bowan Special Needs Trust” against any possible claims made by third parties against GSIC. The $930,000 payment was made to Bowan under the UIM endorsement of EMT’s Business Auto policy.

Bowan’s case against Demery and EMT went to trial on January 21, 2003. The jury returned a verdict against Demery and EMT on January 24, 2003. The jury assessed Bowan’s damages at $3,500,000, but also found Bowan was twenty percent at fault for her negligence in failing.to wear a seatbelt. The trial court entered judgment against Demery and EMT in the amount of $2,800,000.

We reversed the trial court’s judgment with respect to the award of prejudgment interest, but affirmed the judgment in all other respects. Bowan v. Express Medical Transporters, 135 S.W.3d 452, 465 (Mo.App. E.D.2004).

The present case is the result of Bow-an’s attempt to collect this judgment from GSIC. Bowan filed a petition for equitable garnishment against GSIC and EMT in an attempt to get GSIC to satisfy the judgment against EMT for EMT’s negligence as determined by the judgment in the underlying case.

GSIC filed a motion for summary judgment in response in which it argued: (1) there was no coverage under the CGL policy because of an auto exclusion in that policy; (2) Bowan already recovered $990,-000 of the $1,000,000 in coverage afforded under the UIM endorsement; and (3) Bowan is not entitled to duplicate payments under the UIM endorsement and the liability portion of the auto policy.

This matter came before the trial court based on a joint stipulation of facts, GSIC’s motion for summary judgment and “memorandum in response thereto,” Bow-an’s response to GSIC’s motion for summary judgment and memorandum in opposition thereto, oral argument, and Bowan’s exhibits A through H that were submitted during oral argument. On August 2, 2004, the trial court found that the CGL policy was to be applied to pay the judgment rendered against GSIC in the underlying case. The trial court also found that the business auto policy provided coverage and that there would be no “duplicate” payment until such time as the entire judgment had been satisfied. The trial court entered judgment in favor of Bowan for $1,840,000 for damages to be covered by the CGL policy and the business auto policy, in favor of Bowan for $165,600.50 in pre-judgment interest under the CGL policy, and in favor of Bowan for $248,626 in post-judgment interest under the CGL policy and the business auto policy. The trial court subsequently amended its judgment to award $208,303.79 in pre-judgment interest. This appeal followed.

When a case is tried on stipulated facts, the only issue we review on appeal is whether the trial court reached the proper legal conclusions from the stipulated facts. Melton v. Country Mut. Ins. Co., 75 S.W.3d 321, 324 (Mo.App. E.D. 2002). A controversy involving the interpretation and application of an insurance contract is a matter of law for the court when the underlying facts are not in question. Hunt v. Capitol Indem. Corp., 26 S.W.3d 341, 342 (Mo.App. E.D.2000).

In their first point on appeal, GSIC and EMT argue the trial court erred in finding that the CGL policy provided coverage for Bowan’s personal injury claims.

Where an insurance company relies upon an exclusion in its policy to deny coverage, the insurance company carries the burden to prove the facts that make the exclusion applicable. Columbia Mut. Ins. Co. v. Neal, 992 S.W.2d 204, 207 (Mo.App. E.D.1999). In our review of the policy, “[w]e will construe the exclusion clause strictly against the insurer.” Id., quoting Killian v. State Farm Fire & Cas. Co., 903 S.W.2d 215, 217 (Mo.App. W.D.1995). Insurance contracts are designed to furnish protection; as a result, where possible, we will interpret them to grant coverage rather than defeat it. Centermark Properties, Inc. v. Home Indem., 897 S.W.2d 98, 100-01 (Mo.App. E.D.1995). Generally, we find definitions in an insurance policy to be controlling as to the terms used within the policy. Polston v. Aetna Life Ins. Co., 932 S.W.2d 786, 788 (Mo.App. E.D.1996).

It is broadly accepted that where an insured risk and an excluded risk constitute concurrent proximate causes of an accident, a liability insurer is liable as long as one of the causes is covered by the policy. Braxton v. United States Fire Ins. Co., 651 S.W.2d 616, 619 (Mo.App. E.D.1983).

The CGL policy states that the policy does not apply to “ ‘[b]odily injury’ or ‘property damage’ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and ‘loading and unloading.’” Further, “loading and unloading” is defined as “the handling of property.”

The trial court found that driver’s duty to ensure that the disabled passengers were properly secured arose when driver was standing outside of the vehicle before operation. Further, the trial court found that this case did not fall under the “loading and unloading” definition in the policy. As a result, the trial court found that the CGL policy provided coverage in the underlying case.

We agree that based on the policy’s definition of “loading and unloading,” the failure to secure Bowan does not qualify for the exclusion because she is not property. Therefore, the key question is whether the failure to secure Bowan is a negligent act distinct from the “operation” of the vehicle, and further whether the failure to secure is a concurrent proximate cause of Bowan’s injuries such that GSIC would be liable under the reasoning of Braxton. Missouri cases interpreting similar policy provisions fall into two basic categories. The first category involves cases where the negligence is independent of or divisible from the use of a motor vehicle as contemplated by the policy.

For example, in Centermark, a police officer sued Centermark and a security officer employed by it after the police officer’s patrol car was struck by a vehicle owned by Centermark and driven by an unauthorized third person. Centermark, 897 S.W.2d at 99. In that case, relying on the reasoning of Braxton, we found coverage, because there were allegations of negligence that were independent of ownership, maintenance, operation, or use of an automobile. Id. at 101. Specifically, Cen-termark “failed to comply with set procedures for apprehending, subduing, and controlling third parties and persons suspected of criminal activity and it failed to have proper and adequate hiring practices and training policies and programs for its security officers.” Id.

In Neal, a driver backed a vehicle over a child, who was supervised by his grandparents, killing the child. Neal, 992 S.W.2d at 205. We found that this case was one of first impression because it involved negligent supervision of the child who was run over by the vehicle, rather than negligent entrustment and negligent supervision of employees. Id. at 208. Further, we found that the automobile exclusion did not apply to mother’s claim against the grandparents for negligent supervision of a minor because the use of the vehicle that caused the harm was only incidental to the claim. Id. at 209. In other words, the claim for negligent supervision of a minor can occur without the use of a vehicle. Id.

On the other hand, in Porterfield, an insured was driving a truck when the trailer became unhitched and struck and injured the plaintiffs. American States Ins. Co., Inc. v. Porterfield, 844 S.W.2d 13, 14 (Mo.App. W.D.1992). Plaintiffs argued that the commercial general liability policy should apply because Porterfield was negligent in the supervision of his employees as to the proper method of hitching the trailer to the truck. Id. at 15. Our colleagues from the Western District found that the injuries arose out of the use of the truck and not from negligent supervision. Id. at 16, Thus, the automobile exclusion applied and there was no coverage for any injuries arising out of an automobile accident. Id.

Further, in Politte, a passenger sustained an injury in a car accident due to the driver’s negligence. Shelter Mut. Ins. Co. v. Politte, 663 S.W.2d 777, 778 (Mo.App. E.D.1983). The passenger filed a claim against the driver’s father for negligent entrustment of his vehicle to the driver, his son. Id. We found that because an essential element of the liability of the driver’s father (entrustor) is the concurrent negligence of the driver, the liability of the father of the driver necessarily arises out of the operation of the motor vehicle, which the policy excluded. Id. at 779. Thus, in Politte where liability was premised on negligent entrustment, a necessary precondition to the liability of the driver’s father was the negligent use of the car by the entrustee. Politte, 663 S.W.2d at 779.

This case is distinguishable from Politte in that even if Driver had not operated the van negligently by violating the traffic signal and it was involved in an accident when the vehicle was not in operation, he still could have been liable for negligence for the failure to “make certain” Bowan was wearing her seatbelt. Thus, the failure to properly secure Bowan was an independent and distinct act of negligence that did not necessarily involve operation of the vehicle.

This distinction is bolstered by our opinion in the earlier Bowan case. First, Bow-an alleged “two distinct counts of negligence against EMT: (1) negligence in the operation of the motor vehicle and (2) negligence in the loading of her into the van.” Bowan, 135 S.W.3d at 457. The court in that case found that EMT was thirty percent at fault for violation of a traffic signal and twenty percent at fault for fading to “make certain” that Bowan was wearing her seatbelt. Bowan, 135 S.W.3d at 456. Thus, it found liability with -regard to two distinct negligent acts.

Therefore, this case fits into the category of cases that have found that the exclusionary clause did not prohibit coverage. Like in Centermark and Neal, the operation of the van was incidental. The finding in this case, that EMT was hable for failing to properly secure Bowan, is similar to the finding in Neal with respect to negligent supervision of the child who was run over by a vehicle. Both claims involved individuals, who to some extent, needed supervision, and were injured in part because of a lack of supervision. Further, this case is distinguishable on the facts from Porterfield because in that case, the court specifically held that the injuries did not arise out of the negligent supervision of employees but from the use of the truck. In this case, we found in the underlying case that both the failure to properly secure Bowan and the negligent operation of the vehicle were distinct causes of Bowan’s injuries. Therefore, there existed an independent and distinct act of negligence (the failure to properly secure Bowan) that was a cause of Bowan’s injuries and was not excluded under the policy. Where an insured risk and an excluded risk constitute concurrent proximate causes of an accident, a liability insurer is liable as long as one of the causes is covered by the policy. Braxton, 651 S.W.2d at 619.

Therefore, the trial court did not err in finding Bowan was entitled to recover under the CGL policy for her personal injury damages. Point denied.

In their second point on appeal, GSIC and EMT argue the trial court erred in finding that the CGL policy and the business auto liability policy provided coverage for the $1,840,000 judgment.

GSIC makes two claims in this point on appeal. First, it argues the limits of insurance language in both the business auto liability policy and the UIM endorsement to that policy limit Bowan’s recovery to $1,000,000 and she has already recovered $960,000 from GSIC. Second, GSIC argues the “anti-stacking” provision of the auto liability policy restricts coverage for any accident to the highest applicable limit of insurance under any one policy, which in this case would be $1,000,000. We will address this second contention first.

Where a party raises an issue for the first time on appeal, that party has failed to preserve the issue for appellate review. See Rosenfeld v. Thoele, 28 S.W.3d 446, 449 (Mo.App. E.D.2000). We will not find that the trial court has erred on a matter that has not been brought to its attention. Id.

GSIC raises the issue of the “anti-stacking” provision for the first time on appeal. Therefore, that issue is not preserved for our review.

With regard to the limits of insurance argument, the business auto policy states that “[n]o one will be entitled to receive duplicate payments for the same elements of ‘loss’ under this Coverage Form and any ... Underinsured Motorist Coverage Endorsement attached to this Coverage Part.” The UIM Endorsement contains a' provision that states “[n]o one will be entitled to receive duplicate payments for the same elements of ‘loss’ under this Coverage and this policy’s Liability Coverage. We will not make a duplicate payment under this Coverage for any element of ‘loss’ for which payment has been made by or for anyone who is legally responsible.”

When construing an insurance policy, we must give the words their plain meaning, consistent with the reasonable expectations, objectives, and intent of the parties. Millers Mut. Ins. Ass’n v. Shell Oil Co., 959 S.W.2d 864, 867 (Mo.App. E.D.1997). We find ambiguity when the language of an insurance policy is reasonably and fairly open to different construe-tions, and there is duplicity, indistinctness, or uncertainty of meaning. Chase Resorts, Inc. v. Safety Mut. Cas. Corp., 869 S.W.2d 145, 150 (Mo.App. E.D.1993). When determining whether the language in the policy is ambiguous, we will view the words the way they would normally be understood by the average layperson. Id. Further, we will consider whether a phrase is ambiguous by reading the policy as a whole with reference to the associated words. Id. If we find the language of the policy is ambiguous, we will adopt the interpretation most favorable to the insured. Id.

In Home Ins. Co. of New York v. Smith, 235 Mo.App. 552, 140 S.W.2d 64, 67 (E.D. 1940), a case dealing with the subrogation right of an insurance company, the court noted in dicta that “where the aggregate of both sums recovered amounts only to payment of the loss in full, there is no double recovery by the insured for the one loss he has sustained.... ” However, that case involved the interaction of an insured, the insured’s insurance company, and a third party tortfeasor. In this case, the interaction at issue is between the language in the business auto policy and the UIM endorsement of the policy. It is unclear whether “duplicate payments” as, used in relation to the interplay of these policy provisions can be given the same meaning as in the Smith case.

We find that the use of the term “duplicate payments” in the business auto policy and its UIM endorsement is ambiguous. It could mean that the insured cannot receive payments under both the business auto policy and its UIM endorsement or it could be interpreted to mean that the insured cannot, through collection under different policies or endorsements, receive more than the entire amount of the judgment to which he was entitled.

Interpreting this ambiguity in the manner most favorable to the insured requires us to find that Bowan would not receive duplicate payments if she recovered from both the business auto policy and its UIM endorsement. Bowan will not receive more than the full amount of damages she is entitled to under the trial court’s judgment under any one policy. Therefore, she did not receive “duplicate payments” under the different policies.

Therefore, the trial court did not err in finding that the CGL insurance policy and the business auto liability policy and its UIM endorsement all provided coverage for the judgment. Point denied.

In its third point on appeal, GSIC argues the trial court erred in finding in its August 2, 2004 judgment, as amended by its September 1, 2004 order, that GSIC is liable under the CGL insurance policy to pay for the prejudgment interest awarded in Bowan’s personal injury case.

The CGL policy contains a provision that states:

We will pay, with respect to any claim we investigate or settle, or any “suit” against an insured we defend:
Prejudgment interest awarded against the insured on that part of the judgment we pay.

We found above that GSIC is liable under the CGL policy for Bowan’s personal injury claims, and that Bowan does not receive “duplicate payments” under the different policies until the complete measure of her damages is paid. Therefore, based on the above provision, we also find that GSIC is required to pay the prejudgment interest on Bowan’s judgment. Point denied.

SHERRI B. SULLIVAN, J. and NANNETTE A. BAKER, J. concur.

      . Demery had $30,000 in liability coverage through Fanners Insurance Company, and Farmers Insurance Company paid the $30,000 to Bowan.

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

      . The $990,000 includes $930,000 and $30,000 pursuant to the section 537.065 agreement, and $30,000 that Farmers Insurance Company paid Bowan for Demery's liability.

      . The trial court amended the pre-judgment interest to $208,303.79 in order to be consistent with a separate decision of the trial court after the underlying case was remanded for a re-calculation of pre-judgment interest.


text:
    Rick BELDON, Respondent, v. NORFOLK SOUTHERN RAILWAY COMPANY, Appellant.
    No. ED 85147.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 13, 2005.
    James W. Erwin, David A. Dick, Thompson Coburn LLP, St. Louis, MO, for appellant.
    Roger C. Denton, Jerome J. Schlichter, Schlichter, Bogard & Denton, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Norfolk Southern Railway Company (“Employer”), appeals from a judgment of the Circuit Court of the City of St. Louis, awarding Respondent, Rick Beldon (“Claimant”), $1,100,000 in damages for personal injury. Employer claims that the trial court erred in refusing to grant its motion to dismiss for forum non conveniens. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.


text:
    JIM THOMPSON & CO., INC. and Jim Thompson, Respondents, v. BEL-AIR RESTORATION, L.L.C., et al., Appellants.
    No. ED 85231.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 20, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 25,2005.
    Robert W. Bilbrey, Hillsboro, MO, for Appellant.
    Michael A. Clithero, St. Louis, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Bel-Air Restoration, L.L.C., Rodney Eckhoff (“Eckhoff’), and Gary Campbell, Jr. (“Campbell”) (collectively referred to as “Defendants”) appeal from the trial court’s grant of summary judgment in favor of Jim Thompson & Company, Inc. and Jim Thompson (“Thompson”) (collectively referred to as “Plaintiffs”) on Plaintiffs’ claim for conversion. The trial court awarded Plaintiffs damages in the amount of $48,000. Defendants contend the trial court erred (1) in granting summary judgment in favor of Plaintiffs on Plaintiffs’ conversion count because Plaintiffs failed to prove that the property had been converted and that they made a demand for return of the property, and (2) in assessing damages where Plaintiffs offered no evidence as to the fair market value of the converted property or evidence as to Plaintiffs’ damages for loss of use.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


author: GLENN A. NORTON, Chief Judge.

text:
    Connie PAIR, Appellant, v. STATE of Missouri, Respondent.
    No. ED 86620.
    Missouri Court of Appeals, Eastern District, Division Five.
    Oct. 11, 2005.
    Shaun Mackelprang, Jefferson City, MO, for respondent.
    Henry Cummings, St. Charles, MO, for appellant.
   GLENN A. NORTON, Chief Judge.

Connie Pair (Defendant) appeals from a post-conviction order denying her motion for release on house arrest. Because such an order is not a final, appealable judgment, the appeal is dismissed.

In 2002, Defendant pleaded guilty to second degree murder and was sentenced to 25 years in prison. She filed a Rule 24.035 motion for post-conviction relief, which the motion court denied. Defendant appealed and this Court affirmed the motion court’s denial of her Rule 24.035 motion and the mandate issued on June 22, 2005. Pair v. State, 164 S.W.3d 106 (Mo.App. E.D.2005).

On June 24, 2005, Defendant filed a motion with the trial court for release on house arrest. Defendant’s motion contained no cause number and was captioned, “Connie Pair v. State of Missouri.” Defendant cited no authority for the motion, but simply requested release on house arrest to care for her ailing mother. Defendant’s failure to properly caption the motion and include a cause number resulted in the trial court treating it as a separate motion filed in her Rule 24.035 post-conviction motion file, even though her Rule 24.035 proceedings had concluded. On June 29, 2005, the trial court entered an order denying the motion.

Defendant’s motion was not properly filed in the post-conviction case, but should have been filed in her underlying criminal case, cause no. 01CR612294. Under criminal procedure law, there appears to be no statutory authority for Defendant’s appeal. Section 547.070, RSMo 2000, which governs appeals in criminal cases, provides only for an appeal in all cases of “final judgment.” A final judgment occurs in a criminal case when the sentence is entered. State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994). Defendant is not appealing from the judgment of conviction and sentence, but rather from a post-conviction order denying her motion for release on house arrest, which is not a “final judgment” for purposes of appeal. See, State v. Sturdevant, 143 S.W.3d 638 (Mo.App. E.D.2004) (no appeal from denial of petition for release after 120 days); State v. Stout, 960 S.W.2d 535, 536 (Mo.App. E.D.1998) (no appeal from denial of order denying reduction of sentence). Further, there is no other law permitting an appeal from the denial of a motion for release on house arrest.

This Court has a duty to sua sponte determine our jurisdiction. State v. Dunn, 103 S.W.3d 886, 887 (Mo.App. E.D.2003). This Court issued an order directing Defendant to show cause why her appeal should not be dismissed for lack of jurisdiction. Defendant has not filed a response. The appeal is dismissed for lack of a final, appealable judgment.

KATHIANNE KNAUP CRANE, and BOOKER T. SHAW, JJ., concur.


author: SHERRI B. SULLIVAN, J.

text:
    Marilyn R. HILLIGARDT-BACICH, Petitioner/Appellant, v. Robert W. BACICH, Respondent/Respondent.
    No. ED 85185.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 18, 2005.

      W. Scott Pollard, Florissant, MO, for appellant.
    Michael Frederic Avioli, St. Louis, MO, for Respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Marilyn R. Hilligardt-Bacich (Wife) appeals from a trial court judgment entered in a dissolution of marriage action. Wife alleges trial court error in the trial court’s findings of fact and division of property. We reverse and remand for further proceedings.

Factual and Procedural Background

Wife, born in 1952, and Robert W. Ba-cich (Husband), born in 1948, were married in July 1985 and were separated in October 2002. No children were born- of the marriage. In May 2003, Wife filed a Petition .for Dissolution of Marriage, to which Husband filed an Answer and Cross Petition. Under Rule 73.01, both parties requested the trial court to issue findings of fact, and the transcript indicates that the trial court was aware of the parties’ requests. Wife’s request included the following:

1. That the Court prepare a brief opinion containing a statement of the grounds for its decision and the method of deciding how the award of the division of property was made.
2. That the Court make findings of the following:
a. How was the LAGERS pension plan determined to be separate and/or marital property.
b. What is the present monthly payment made by LAGERS to [Husband].
c. What asset, if any, was determined to be separate property and how was its value determined.
d. What percentage of the marital property is to be awarded to each party.

Only Wife and Husband testified at trial. Although the legal file contains a trial court order granting an extension of time for Wife to file proposed findings of fact and conclusions of law over Husband’s objection, the legal file and the docket sheets do not contain any such filing by Wife.

In June 2004, the trial court entered a judgment dissolving the parties’ marriage. In its judgment, the court found the following. Wife is employed by Neiman Marcus, earns about $1,700 per month, and has a Neiman Marcus Employee Savings Plan in the amount of $1,078.68, to which she contributes via payroll deduction. Husband is employed by Ameristar Casinos, earns about $1,600 per month, and receives $1,600 per month in retirement benefits from a Local Government Employees Retirement System (LAGERS) pension. Regarding the LAGERS pension, the court found: (1) it consists of both marital and non-marital portions; however, the record was void of evidence from which the court could determine the marital and non-marital portions with specificity and accuracy; (2) it is a vested, non-qualified plan, and it is not subject to a Qualified Domestic Relations Order; and (3) the parties knowingly and voluntarily made an election that determines present and future distributions, including that Wife is entitled to $700 per month upon Husband’s death, and the parties are not entitled to change their election at any time subsequent thereto.

Husband began an affair in December 2001. However, for three years prior to the affair, the parties’ marital relationship was distant and void of comfort and companionship, although the parties resided together. Husband spent $8,000 of marital property on the affair. The trial court found that Husband’s affair did not contribute to the breakdown of the marriage to the extent that a greater portion of the marital property should be awarded to Wife other than the equitable portion awarded to Wife in the judgment.

During the marriage, Husband received a lawsuit settlement that was used to satisfy marital debt. Husband also inherited $50,000, which he maintained in a separate bank account. In August 2002, Husband gave Wife $46,000 for the following purposes: to purchase a home, in consideration of Wife’s financial interest in the marital residence, her lack of retirement, and any interest she had in joint bank accounts, and to compensate Wife for her share of the marital property dissipated on Husband’s affair.

In its judgment, the trial court ordered the following division of property. The court awarded Wife a 1996 Honda Accord, valued at $6,500, marital real property valued at $137,000 with available equity of $41,000, and the Neiman Marcus Employee Savings Plan. The court awarded Husband a 1998 Jeep Cherokee, valued at $8,500, marital real property valued at $136,000 with available equity of $33,000, and the LAGERS pension. The court ordered the parties to adhere to the elections made within the LAGERS pension.

The court found Wife’s distribution of marital property to be $152,578.68 and Husband’s to be $150,075.00. The court also noted that Husband used his separate inheritance and settlement proceeds to equalize the property and to eliminate the marital debts.

Wife filed a Motion for New Trial or in the Alternative To Amend the Court’s Judgment, which the trial court denied. Wife appeals from the judgment.

Standard of Review

The standard for reviewing a judgment of dissolution is the same for reviewing any court-tried action. Bullard v. Bullard, 929 S.W.2d 942, 944 (Mo.App. E.D.1996). The judgment must be affirmed 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). We view the evidence and the inferences therefrom in the light most favorable to the judgment and disregard all contrary evidence. Endebrock v. Endebrock, 916 S.W.2d 456, 457 (Mo.App. E.D.1996). Additionally, we recognize the superior position of the trial court to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles that are not revealed in a trial transcript. Ficker v. Ficker, 62 S.W.3d 496, 499 (Mo.App. E.D.2001). The trial court is free to accept or reject all, part, or none of the testimony of a witness. Endebrock, 916 S.W.2d at 459.

Discussion

Wife raises two points on appeal. In her first point, Wife argues that the trial court erred in failing to make the following findings of fact as requested under Rule 73.01:(1) how the LAGERS pension was determined to be marital and/or non-marital property and (2) the percentage of marital property awarded to each party.

Failure of a court to prepare specified findings of fact as requested by counsel under Rule 73.01 is error and mandates reversal when such failure materially affects the merits of the action or interferes with appellate review. Lattier v. Lattier, 857 S.W.2d 548, 549 (Mo.App. E.D.1993). The failure of a trial court to issue findings that were properly requested does not always require reversal. Id. Generally, if the record is sufficient to support the trial court’s judgment, we will affirm. Id.

We conclude that the trial court erred in not determining the marital and non-marital portions of the LAGERS pension. The trial court must make specific findings on whether or not assets are marital or non-marital property prior to a subsequent just division of marital property. Waldon v. Waldon, 114 S.W.3d 428, 431 (Mo.App. E.D.2003). In many eases, retirement benefits are the most valuable asset belonging to a married couple. Lagermann v. Lagermann, 109 S.W.3d 239, 243 (Mo.App. E.D.2003). The trial court’s failure to identify the marital and non-marital portions of the LAGERS pension interferes with our ability to determine whether or not the trial court’s division of the marital property is just. Until the non-marital portion of the LAGERS pension is identified and valued, we cannot determine whether or not the trial court’s division of the marital property is just. See Waldon, 114 S.W.3d at 431. We note that we also are unable to determine how the trial court arrived at the amount stated in its judgment as the distribution of marital property to Husband ($150,075) and whether or not the amount includes the LAGERS pension. Therefore, we reverse the judgment of the trial court and remand the case for the trial court to determine the marital and non-marital portions of the LAGERS pension, receiving additional evidence on this issue if necessary, and to divide the marital portion “as the court deems just.”

In light of our ruling under Wife’s point one on appeal, her point two on appeal, arguing that the trial court erred in awarding the whole monthly LAGERS pension benefit to Husband, is moot.

Conclusion

The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

NANNETTE A. BAKER, P.J., and ROBERT G. DOWD, JR., J., concur.

      . All rule references are to Mo. R. Civ. P. 2005, unless otherwise indicated.

      . Husband had been receiving the monthly retirement benefits for about a year and a half prior to the dissolution trial.

      . Prior to trial, the parties divided all household goods/furnishings and other personal property. Also, the court awarded each party their separate, individual bank accounts.

      . This marital residence was refinanced twice in 2001 to pay off substantial marital credit card debt.

      . Under Section 452.330, one of the relevant factors for the trial court to consider in its division of marital property is the value of the non-marital property set apart to each spouse.