author: MARY RHODES RUSSELL, C.J.

text:
    Jami Marie (Racer) DRURY. Petitioner/Respondent, v. David Lee RACER, Respondent/Appellant.
    No. ED 76828.
    Missouri Court of Appeals, Eastern District, Southern Division.
    May 16, 2000.

      Carl D. Kinsky, Ste. Genevieve, for appellant.
    Eric C. Harris, Park Hills, for respondents.
   MARY RHODES RUSSELL, C.J.

David Racer (“father”) appeals the trial court’s judgment increasing his child support obligation to include the costs of private school and requiring him to retroactively pay a portion of his child’s private school expenses. We find the trial court erred in increasing father’s child support obligation in that mother failed to prove that private schooling met any particular educational needs of the child. Accordingly, we reverse and remand.

Father and' Jami Racer Drury (“mother”) divorced in December 1992. Mother was awarded primary physical custody of their three-year old child, while father was granted temporary custody and visitation rights. Father was ordered to pay $76 per week as child support. The divorce decree, which incorporated the parties’ separation agreement, stated, “[Mother] agrees that she will confer with [father] on major issues regarding the health, education and welfare of the child.” ■ The decree further provided, “The parties agree to split the cost/expenses of primary and secondary education for the minor child.... ”

Mother, who is Roman Catholic, enrolled the child in a parochial primary school in 1995. Father, who is not Roman Catholic, was not informed of this decision prior to enrollment.

In July 1996 father filed a Motion to Modify and Motion for Contempt. He claimed mother was interfering with the exercise of his visitation rights. He also sought increased visitation.

Mother filed a First Amended Counter-Motion to Modify and Counter-Motion for Contempt on August 12, 1997. She sought, among other forms of relief, to have father’s visitation rights restricted and an order holding father in contempt for not paying one-half of the child’s primary school expenses.

Father later filed a First Amended Motion to Modify. He requested either an order eliminating the requirement that he pay any portion of the “cost/expenses of primary ... education” or an order clarifying what those terms meant.

• In May 1998 mother filed her Second Amended Counter-Motion to Modify, Motion for Declaratory Judgment, and Motion for Contempt. She requested, among other forms of relief, that father pay one-half the costs of parochial schooling. She also sought, for the first time, an increase in child support.

The trial court dismissed mother’s Motion for Declaratory Judgment and Motion for Contempt. The case proceeded on father’s First Amended Motion to Modify and mother’s Second Amended Counter-Motion to Modify.

In its judgment, the trial court increased father’s child support obligation to $390 per month, effective September 1, 1999. This amount was calculated by including the cost of parochial school. The trial court also ordered father to pay $325 per month in child support from August 13, 1997 to September 1, 1999. This amount was calculated without any parochial school expenses. Father was ordered to pay any arrearages during this period at the rate of $60 per month until paid in full. Finally, the trial court ordered father to pay one-half of the parochial school expenses from the fall of 1997 until the Spring of 1999 in the amount of $1,241. This appeal followed.

Our standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 32.

In his first point, father argues the trial court erred in increasing his child support obligation to include the costs of parochial school in that his child has no particular educational needs that cannot be met at a public school.

A child’s educational need is a relevant factor that the trial court may consider in awarding child support. In re Marriage of Glueck, 913 S.W.2d 951, 955 (Mo.App.1996). The cost of a _ private school may be a valid item of support. Id. The decision to increase child support that requires the noncustodial parent to pay a portion of private school tuition rests within the sound discretion of the trial court. Id. We will defer to that court’s judgment unless the evidence is palpably insufficient to support it. Id.

The fact that a parent did not agree to send a child to private school or does not want to pay for private school is not by itself enough to deny child support for educational expenses. Shiflett v. Shiflett, 954 S.W.2d 489, 494 (Mo.App.1997). A parent’s lack of willingness to pay is, however, a relevant factor. Id. at 495. The test for determining when a court should order private schooling over the wishes of one parent is when such schooling will meet the particular educational needs of the child. Id.

At the hearing, mother testified as to her reasons for enrolling the child in the particular parochial school she chose. The foremost reason was so her child could receive religious instruction in mother’s religion which was not shared by father. In addition, mother had attended the same parochial school, and she wanted her child to have the same experience. Mother also mentioned the low student-teacher ratio at the parochial school, its effective discipline, and its success in preparing students for college.

Mother admitted the child is a good student who would do well at any school. She also stated her child has no special educational needs. Finally, mother testified that the local public school is a “fine school,” and not in any way educationally inferior to the parochial school. In fact, mother was to be employed in the local public schools as a teacher’s aid.

In its findings of fact, the trial court specifically found that the child “does not have any ‘special’ educational needs that cannot be met in a public school.”

Based on this evidence, we find mother has failed to prove that private schooling met any particular educational needs of her child. See Schmidt v. Schmidt, 949 S.W.2d 117, 120-21 (Mo.App.1997); Dachsteiner v. Dachsteiner, 894 S.W.2d 248, 251-52 (Mo.App.1995). As a result, the trial court erred in ordering father to pay one-half of the parochial school expenses.

Mother’s reliance on Garner v. Garner, 973 S.W.2d 513 (Mo.App.1998) and Leslie v. Leslie, 948 S.W.2d 458 (Mo.App.1997) is misplaced, as they are distinguishable from the instant case. In Gamer, the mother provided detailed reasons for enrolling her children in a particular single-sex private school. One of the main reasons was the specialized athletic program through which the children could acquire college scholarships. In Leslie, evidence was presented that the public school environment was particularly hostile to the child, and that the lack of air conditioning at the public school aggravated the child’s asthma. The courts in both of these cases were able to find the children had particular needs that could not be met in a public school.

In this case, however, mother testified to no particular aspect of the curriculum at the parochial school, other than the religious instruction, that prompted her desire that the child attend the private school. More importantly, mother stated the local public school was in no way academically inferior to the parochial school.

Mother points out that as the custódial parent, she was in the best position to determine the child’s educational needs. We recognize that deference is given to the custodial parent with respect to the decision concerniiig education beyond that provided by the state system. Schmidt, 949 S.W.2d at 121. This principle, however, does not answer the question of who must pay for the education. In order to compel payment from father, mother must prove the parochial school meets the particular educational needs of the child. See Shiflett, 954 S.W.2d at 495. This she has failed to do. Point I is granted.

In his second point, father argues the trial court erred in increasing his child support obligation to include the costs of parochial school in that mother failed to show changed circumstances so substantial and continuing as to make the previous support award unreasonable.

A child support award is modifiable only if the movant shows changed circumstances so substantial and continuing as to make the terms of the original decree unreasonable. Killian v. Grindstaff, 987 S.W.2d 497, 499 (Mo.App.1999); section 452.370.1 RSMo (Cum.Supp.1999). The burden of proof is on the party seeking modification, and the change must be proven by detailed evidence. Killian, 987 S.W.2d at 499. A prima facie showing of such changed circumstances is made if there has been a change of twenty percent or more in the child support amount since the prior decree. Id.

We have previously determined mother is not entitled to the inclusion of the child’s parochial school expenses in determining father’s child support responsibility. The trial court completed its own Form 14, calculating the presumed child support amount without including the private school expenses. In its calculation, the trial court utilized the same figures as did mother for the parties’ monthly gross incomes and adjusted gross incomes. Based on those amounts, the trial court determined that the presumed child support amount was $325 per month, which was four dollars less than what father is currently obligated to pay. As a result, we find mother has failed to show she is entitled to any increase of child support. Point II is granted.

In his third point, father argues the trial court erred in ordering him to pay a portion of his child’s parochial school expenses retroactive to the fall of 1997 and the spring of 1998 because those costs were incurred prior to when mother’s motion to modify the child support was served in May 1998.

We have previously determined that it was error for the trial court to increase father’s child support obligation in order to pay the child’s parochial school expenses in that mother failed to prove the school met any particular educational needs of the child. Of necessity, the trial court should not have ordered father to pay a portion of those expenses retroactively. Point III is granted.

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

RICHARD B. TEITELMAN, J., and LAWRENCE E. MOONEY, J., concur.

      . It is unclear why the trial court ordered father to pay arrearages during the August 1997 to September 1999 period. The evidence showed father was current on his child support obligations, and the $325 per month amount was actually less than what father was previously ordered to pay.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Interest of S.K., S.K., C.W., C.K., and A.K., Minor Children.
    No. ED 76579.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 16, 2000.
    Margaret Donnelly, Arthur H. Nissenb-aum, Guardian Ad Litem, Clayton, for appellant.
    Nancy J. Pew, Family Court of St. Louis County, Clayton, for respondent.
    Before: MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J., and CHARLES B. BLACKMAR, Sr J.
   ORDER

PER CURIAM.

Mother appeals the juvenile court’s judgment terminating her parental rights to five of her children. We find the judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

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


text:
    STATE of Missouri, Plaintiff/Respondent, v. Timothy RUCKER, Defendant/Appellant.
    No. ED 76418.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 16, 2000.

      Irene Earns, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, Jr., J. and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Defendant Timothy Rucker appeals from the judgment entered on his conviction by a jury of murder in the first degree, in violation of Section 565.020.1 RSMo (1994), armed criminal action, in violation of Section 571.015 RSMo (1994), and burglary in the first degree, in violation of Section 569.160 RSMo (1994). The trial court found he was a prior and persistent offender and sentenced him to life imprisonment without the possibility of probation or parole, a concurrent term of life imprisonment, and a consecutive term of life- imprisonment.

No error of law appears and no jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 30.25(b).


text:
    In the Interest of S.F.B., a minor. S.B. Appellant, v. Juvenile Officers of St. Louis County, Missouri, Respondent.
    No. ED 76111.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 16, 2000.
    Dudley C. Dunlop, Clayton, for appellant.
    Nancy J. Pew, Family Court of St. Louis County, Clayton, for respondent.
    Before MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J., CHARLES B. BLACKMAR, Sr. J.,
   ORDER

PER CURIAM.

S.B. (“Father”) appeals the judgment terminating his parental rights to his minor child. We have reviewed the briefs of the parties and the record on appeal and find that the judgment is supported by substantial, clear, cogent and convincing evidence, is riot against the weight of the evidence and does not erroneously declare or misapply the law. An extended opinion would have no precedential value. We have, however, provided the parties "with a memorandum, for their information only, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Gladys CARTER, Defendant/Appellant.
    No. ED 76321.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 16, 2000.
    Lisa M. Stroup, Asst. Public Defender, St. Louis, for appellant.
    Jeremiah W. (Jay)Nixon, Atty. Gen., Susan K. Glass, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: MARY RHODES RUSSELL, C.J., LAWRENCE G. CRAHAN, J., and CHARLES B. BLACKMAR, Sr.J.
   ORDER

PER CURIAM.

Defendant appeals from the judgment entered on a jury verdict finding her guilty of one count of possession of a controlled substance in violation of Section 195.202 RSMo 1994 on which she was sentenced as a prior drug offender to six years’ imprisonment.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).


author: KATHIANNE KNAUP CRANE, Presiding Judge.

text:
    Mark A. McNALLY, Petitioner/Respondent, v. ST. LOUIS COUNTY POLICE DEPARTMENT, City of Maplewood, Maplewood Municipal Police Department, Missouri Highway Patrol Troop C, Criminal Records Repository, Regional Justice Information Service Commission, Defendants, and Director of Revenue, Defendant/Appellant.
    No. ED 76041.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 16, 2000.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for appellant.
    Mark A. McNally, St. Louis, pro se.
   KATHIANNE KNAUP CRANE, Presiding Judge.

The Director of Revenue (the Director) appeals from the judgment of the circuit court ordering the Director to expunge petitioners administrative alcohol suspension under Section 577.054 RSMo (1994). On appeal, the Director contends that the trial court exceeded its jurisdiction and misapplied the law because petitioner sought expungement of arrest records under Section 610.122 RSMo (Cum.Supp. 1998), a section which does not provide for expungement of records of administrative actions. The Director further argues that Section 577.054 likewise does not authorize the relief granted. We reverse.

Petitioner, Mark A. McNally, who was born on September 26, 1954 was arrested on January 4, 1987 and charged with driving while- intoxicated. On March 27, 1987, the Director took action against petitioner’s driving privilege in the form of administrative alcohol suspension. Petitioner was thirty-two years old. The Director suspended petitioner’s driving privilege for thirty days. The Department of Revenue’s Electronic Record System shows with respect to petitioner:

Department Actions

Administrative Alcohol Suspension effective on 3-27-1987

Eligible to reinstate on 6-25-1987, action is Reinstated as of 7-12-1988 Offense occurred in Non-Commercial Vehicle

Case AD87057949, ticket no. 000020607

On February 5, 1999, petitioner filed a “Petition for Expungement of Arrest Records” pursuant to Section 610.122 RSMo, naming the St. Louis County Police Department, City of Maplewood, Maplewood Municipal Police Department, Missouri Highway Patrol Troop C, Criminal Records Repository, Regional Justice Information Service Commission and the Director as defendants. The petition was noticed for hearing on March 9,1999. The Director filed a “Motion to Dismiss Petition as it Relates to Administrative Suspension” on the grounds that petitioner was ineligible for expungement of his 1987 suspension under Section 577.054.

On March 9, 1999, the trial court heard the petition. In its judgment the court found that Section 577.054 applies to an administrative suspension and ordered the Director to expunge the record of petitioner’s administrative suspension. The Director appeals.

The Director first argues that, because petitioner petitioned the court for expungement under Section 610.122, the court had no authority to proceed under Section 577.054. Although no record was made of the hearing, it appears from the legal file that the issue was tried as a claim under Section 577.054 by consent. In his motion to dismiss, the Director argued only reasons why Section 577.054 did not apply and did not mention Section 610.122. In addition, the trial court recited in its judgment that plaintiff had petitioned for expungement pursuant to Section 577.054.

The Director next argues that Section 577.054 does not authorize expungement in this case because that statute authorizes only the expungement of records relating to an individual’s arrest, plea, trial and conviction and does not extend to an administrative suspension. We agree.

Section 577.054 provides in part:

After a period of not less than ten years, an individual who has pleaded guilty or has been convicted for a first alcohol-related driving offense which is a misdemeanor or a county or city ordinance violation and which is not a conviction for driving a commercial motor vehicle while under the influence of alcohol and who since such date has not been convicted of any other alcohol-related driving offense may apply to the court in which he pled guilty or was sentenced for an order to expunge from all official records all recordations of his arrest, plea, trial or conviction.

The primary rule of statutory interpretation requires the court to ascertain the legislative intent by considering the plain and ordinary meaning of the words in the statute. Mills v. Director of Revenue, 964 S.W.2d 873, 875 (Mo.App.1998). When a statute has clear and unambiguous language, there is no room for construction. Id. Section 577.054 provides for the ex-pungement from all official records all recordations of an individual’s arrest, plea, trial or conviction. It does not authorize expungement of the records of administrative suspension. See Ford v. Director of Revenue, 11 S.W.3d 106, 110 (Mo.App.2000).

Further, the legislature has enacted a statute which deals specifically with the expungement of Department of Revenue records. Section 302.545 RSMo (Cum.Supp.1998). “When the same subject matter is addressed in general terms in one statute and in specific terms in another, the more specific controls over the more general.” Greenbriar Hills v. Director of Revenue, 935 S.W.2d 36, 38 (Mo. banc 1996). Section 302.545 authorizes the expungement of Department of Revenue records of suspension or revocation with respect to persons under twenty-one years of age who meet certain conditions. When “ ‘a statute enumerates the subjects or things on which it is to operate, or the persons affected, or forbids certain things, it is to be construed as excluding from its effect all those not expressly men-' tioned.’ ” Greenbriar Hills, 935 S.W.2d at 38. (quoting Giloti v. Hamm-Singer Corp., 396 S.W.2d 711, 713 (Mo.1965). Section 302.545 therefore excludes expungement of Department of Revenue records for persons who do not fall within the purview of that statute.

In conclusion, there is no statutory basis to authorize expungement of petitioner’s administrative suspension. Ford, 11 S.W.3d at 110. Further, in the absence of statutory authorization for expungement' of Department of Revenue drivers’ records, a court has no equitable power to expunge. Id. at 109-110.

The judgment of the circuit court is reversed.

ROBERT G. DOWD, Jr., J. and SHERRI B. SULLIVAN, J. concur.

      . The minutes reflect a judgment was entered with respect to the other parties, those parties have not appealed.

      . Section 610.122 applies only to records of arrest, and then, only if the court finds that the arrest was based on false information and that all five conditions set forth in the statute are shown to exist. See Ford v. Director of Revenue, 11 S.W.3d 106, 108 (Mo.App. S.D.2000).

      . Petitioner did not attempt to and could not take advantage of Section 302.545 because he was thirty-two years old at the time the Director took administrative action against his driving privilege.


author: EDWIN H. SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Shawn C. HAYNES, Appellant.
    No. WD 57286.
    Missouri Court of Appeals, Western District.
    May 16, 2000.
    Craig A. Johnston, Asst. Public Defender, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Barbara K. Chesser, Asst. Atty. Gen., Jefferson City, for respondent.
    Before: BRECKENRIDGE, C.J., and LAURA DENVIR STITH and EDWIN H. SMITH, JJ.
   EDWIN H. SMITH, Judge.

Shawn C. Haynes appeals the judgment of his conviction and sentence in the Circuit Court of Lafayette County for escape from custody, § 575.200, after a bench trial for which he was sentenced, as a prior and persistent offender, §§ 558.016 and 557.036, RSMo Supp.1996, to five years imprisonment in the Missouri Department of Corrections, to be served consecutively to the sentences he was then serving for two prior forgery convictions.

Although denominated as one point in his points relied on, the appellant in actuality raises two points on appeal. He first claims that the trial court erred in overruling his motions for judgment of acquittal at the close of the State’s evidence and all the evidence because there was insufficient evidence to support his conviction of escape from custody in that the State’s evidence did not establish, as required under § 575.200, the essential element of the crime that at the time he escaped, he was “being held in custody after arrest for any crime.” (Emphasis added.) He also claims that the trial court erred in overruling his pretrial motion to dismiss the charge against him because the indictment was insufficient in that it failed to plead this requisite element.

We reverse.

Facts

On September 22, 1997, the appellant pled guilty to two counts of forgery, § 570.090, in the Circuit Court of Lafayette County, for which he was sentenced to two consecutive terms of five years imprisonment in the Missouri Department of Corrections. The trial court suspended execution of his sentences and placed him on probation for five years.

On January 21, 1998, the circuit court suspended the appellant’s probation and issued a warrant for his arrest for a probation violation. On February 22,1998, Officers Kyla Bodenstab and Gregory Guinn of the Higginsville Police Department executed the warrant at the appellant’s ‘girlfriend’s house. The officers did not place handcuffs on the appellant because he had a splint on his left wrist. Officer Boden-stab transported the appellant to the police department. As she pulled into the police department’s parking lot, the, appellant told her that he “couldn’t handle this, she would have to shoot him, he wasn’t going back to jail.” He then jumped out of the vehicle and started running. Shortly thereafter, he was apprehended by Officer Guinn and placed under arrest again.

On April 16, 1998, a Lafayette County grand jury returned an indictment against the appellant, charging him with the class D felony of escape from custody, § 575.200. In pretrial proceedings on November 3, 1998, the appellant waived his right to a jury trial. He also filed a “Motion to Dismiss for Failure of State to Charge a Crime,” claiming that because he was not being held in custody after arrest for any crime when he escaped, as required by § 575.200, the State had “failed to file an indictment that chargefd] a crime,” and the court could not convict him of escape from custody as charged. The court took the motion under advisement, indicating that it would rule on it at the close of the State’s evidence.

The case proceeded to a bench trial. At the close of the State’s evidence, the appellant filed a motion for judgment of acquittal, which the trial court overruled, as well as his motion to dismiss. The defense then rested, without presenting evidence, and filed a motion for judgment of acquittal at the close of all the evidence, which the trial court also overruled. The court then found the appellant guilty of escape from custody, § 575.200, and sentenced him, as a prior and persistent offender, to five years imprisonment in the Missouri Department of Corrections, to be served consecutively with the sentences he was then serving for the two prior' forgery convictions.

This appeal follows.

I.

As to the appellant’s claim that the indictment charging him with the offense of escape from custody was fatally defective in that it failed to allege the essential element of the offense, that at the time he escaped, he was “being held in custody after arrest for any crime,” § 575.200, the State concedes the point and acquiesces in his conviction being reversed. We agree.

“[T]he test for the sufficiency of an indictment or information is “whether it contains all the essential elements of the offense as set out in the statute [creating the offense].’” State v. Pride, 1 S.W.3d 494, 502 (Mo.App.1999) (quoting State v. Hyler, 861 S.W.2d 646, 649 (Mo.App.1993) (citation omitted)), cert. denied, — U.S. —, 120 S.Ct. 1269, — L.Ed.2d — (2000). “To be sufficient, the indictment must also clearly advise the defendant of the facts constituting the offense so that he may prepare an adequate defense and prevent retrial on the same charges in case of an acquittal.” Id.

In State v. Rotter, 958 S.W.2d 59 (Mo.App.1997), the defendant was convicted of failing to drive on the right side of the roadway, § 304.015.2, RSMo Supp.1996. Id. at 61, 65. The amended information charged that the defendant “‘fail[ed] to keep said motor vehicle as near the right hand side of the highway as practicable.’ ” Id. at 65-66. The Missouri Court of Appeals held that failing to drive a motor vehicle as near the right hand side of the roadway as practicable, as was alleged in the information, did not constitute an offense under § 304.015.2, RSMo Supp.1996, and, as such, the information “failed to assert an essential element of the offense” because it did not claim that the defendant “failed to drive the motor vehicle he was then operating upon the right half of the roadway.” Id. at 66. The court found that the offense of failing to drive on the right side of a roadway was never properly charged and reversed the defendant’s conviction. Id.

In State v. Keith, 839 S.W.2d 729 (Mo.App.1992), the defendant was convicted of the class A misdemeanor of violation of an ex parte order of protection and an ex parte order of child protection, in violation of §§ 455.045 and 455.085. Id. at 730. On appeal, the defendant claimed that the information charging him was insufficient because it “failed to allege facts sufficient to constitute a violation under Section 455.085, RSMo Supp.1991, the protective order under the Adult Abuse Act.” Id. The Missouri Court of Appeals held that:

The information failed to allege that [the defendant] either “abused” [the alleged victim] under any of the definitions provided within Section 455.010, RSMo Supp.1991, or entered onto the premises of her dwelling unit. The allegation [in the information] that [the defendant] “had contact with and disturbed the peace of [the alleged victim]” does not sufficiently state elements which constitute a violation under Section 455.085.7, RSMo Supp.1991.

Id. at 732 (footnote omitted). The court reversed the defendant’s conviction and ordered him discharged. Id.

In this case, on April 16, 1998, a grand jury in the Circuit Court of Lafayette County returned an indictment charging the appellant with the class D felony of escape from custody, § 575.200. Section 575.200.1 provides that “[a] person commits the crime of escape from custody or attempted escape from custody if, while being held in custody after arrest for any crime, he escapes or attempts to escape from custody.” The indictment provided, in pertinent part:

The Grand Jurors of the County of Lafayette, State of" Missouri, charges that the defendant, in violation of Section 575.200 R.S.Mo., committed the Class D Felony of ESCAPE FROM CUSTODY punishable upon conviction under Sections 558.011.1(4) & 560.011, R.S.Mo., in that on or about February 22, 1998 in the County of Lafayette, State of Missouri, the defendant, acting either alone or knowingly in concert with others, while being held in custody after arrest for violating the terms of his probation for the felony of Forgery, in case number 197-37F out of the Circuit Court of Lafayette County, escaped from custody!.]

The appellant claims that the indictment was insufficient because it failed to allege that at the time of his escape, he was being held after arrest for any crime, an essential element of the offense of escape from custody, in that, at the time of his escape, he was being held after arrest for a probation violation, which is not a criminal offense.

The record reflects that at the time of the appellant’s escape from custody on February 22, 1998, he was being held in custody after arrest for a violation of the conditions of his probation. “[The Missouri] Supreme Court has said that a violation of the conditions of probation is not a criminal offense.” State v. Murphy, 787 S.W.2d 794, 798 (Mo.App.1990) (Pudlowski, P.J., dissenting) (citing State v. Brantley, 353 S.W.2d 793, 796 (Mo.1962)); State ex rel. Cooper v. Hutcherson, 684 S.W.2d 857, 858 (Mo.App.1984). As such, when the appellant escaped from custody on February 22, he was not “being held in custody after arrest for any crime,” as required for conviction under § 575.200.1. Thus, the indictment was fatally defective in charging the appellant with a crime in that it failed to allege an essential element of the crime sought to be charged, requiring us to reverse his conviction for the same. Rotter, 958 S.W.2d at 66; Keith, 839 S.W.2d at 732.

Conclusion

The judgment of the circuit court of the appellant’s conviction of escape from custody, § 575.200, is reversed, and he is ordered discharged' as to his conviction of this offense.

BRECKENRIDGE, C.J., and LAURA DENVIR STITH, J., concur.

      . All statutory references are to RSMo 1994, unless otherwise indicated.


author: RONALD R. HOLLIGER, Judge.

text:
    QUIK ‘N TASTY FOODS, INC., Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 57625.
    Missouri Court of Appeals, Western District.
    May 16, 2000.

      Carol Clark, William Martucci, Overland Park, KS, for appellant.
    Sharon Willis, Division of Employment Security, Kansas City, for respondent.
   RONALD R. HOLLIGER, Judge.

Quik ‘N Tasty Foods, Inc. appeals the decision of the Labor and Industrial Relations Commission, awarding unemployment compensation benefits to claimant, Wendy Foley. In its sole point on appeal, Quik ‘N Tasty claims the Labor and Industrial Commission erred in deciding the claimant was eligible for unemployment benefits on a finding that she quit her job voluntarily with good cause attributable to her work or to her employer. We reverse the decision and remand the case- to the Commission.

Wendy Foley was employed by Quik ‘N Tasty as a machine operator for more than three years. At the end of the work day on March 24,1999, Ms. Foley was called to the office of her employer. She had previously been told by a co-worker that her attendance record was being reviewed. She believed she was being called to the office that day to be reprimanded for excessive absenteeism. She testified that she did not go to the office voluntarily and that she had not planned to resign from her job that day. At the conclusion of the meeting, however, Ms. Foley resigned.

On March 29, 1999, Ms. Foley applied for unemployment benefits with the Division of Employment Security. On April 19, 1999, a deputy with the Division issued a determination that Ms. Foley was disqualified for benefits because she left her work voluntarily without good cause attributable to her work or employer. Ms. Foley filed her appeal and a hearing was held before an Appeals Referee on May 13, 1999. The referee concluded that Ms. Foley left her work voluntarily because she felt she would be discharged and she did not want a discharge on her .employment record; that there was no specific evidence from which it could be reasonably inferred that the claimant was told she would be discharged if absent on March 29; that the evidence only showed that the claimant was told she needed to find someone else to take her children to the dentist that day; and that the employer only suggested that perhaps it would look better for her if she resigned. The Tribunal concluded that the employer did not advise Ms. Foley she had to leave work voluntarily or be discharged, and further concluded that Ms. Foley’s decision to leave her- work voluntarily was unreasonable, not in good faith, and without good cause attributable to the work or to the employer. The Appeals Referee, therefore, held Ms. Foley to be disqualified for unemployment benefits until she earned wages equal to ten times her weekly benefit.

Ms. Foley then appealed the Tribunal’s decision to the Labor and Industrial Commission, which reversed the decision of the Tribunal and found that Ms. Foley’s actions were reasonable, her resignation was in good faith, and that she was, therefore, not disqualified from benefits.

Quik ‘N Tasty now appeals the decision of the Commission.

Ms. Foley testified before the Appeals Referee that she had recently been under stress due to personal problems and that she had been absent from work for personal reasons, including illnesses and bad weather. Present in the office on March 24,1999, when Ms. Foley arrived, were her immediate supervisor (her team leader, Tina James), two other team leaders, and in an office nearby was the manufacturing plant manager. The office door was closed. Ms. James testified that Ms. Foley was called to the meeting to be issued a “redirect” regarding her attendance problems. A “redirect” is a verbal warning, the first step in progressive discipline. Ms. Foley testified that she did not recall that occurring. There is no evidence that Ms. Foley was aware of the progressive discipline procedures Quik ‘N Tasty had in place. During the meeting, Ms. Foley’s supervisor informed her that she had heard rumors that Ms. Foley was looking for another job and that it would be easier on both of them if she were honest about it. Ms. Foley became upset and began to cry. She advised Ms. James that she was under a lot of stress and was worried about being fired, and that she required time off the following Monday, March 29, 1999, to take her children to the dentist. Ms. Foley was told that her absence on Monday would be unacceptable, and that she needed to find someone else to take her children to the dentist. Ms. Foley did not feel anyone else could go in her stead because her son was expected to require a root canal, and her daughter was afraid of doctors.

It was also suggested by her supervisor in the meeting that Ms. Foley consider resigning, because a resignation would look better on her employment record than would a discharge. Ms. James suggested she and Ms. Foley go together to see the personnel manager to determine what severance benefits would be available. The personnel manager provided Ms. Foley with a resignation form, which she completed and signed. It indicated that her last day of work would be two days later, on March 26, 1999. In the section requesting the employee’s reason for quitting, Ms. Foley wrote “personal,” as suggested by the personnel manager. She returned later that day and changed it to read “distance & transportation & day care duress.”

Ms. Foley admits she was not told she would be discharged if she did not resign, nor was she told she would be discharged if she failed to report to work the following Monday. Nonetheless, she claimed she was placed under duress and coerced into resigning by her employer during the meeting because she was being advised that her absence on March 29 would be unacceptable and she was in fear of being discharged if she did not report to work that day.

Quik ‘N Tasty contends that the Commission erred in finding that Ms. Foley quit her job voluntarily with good cause attributable to her work or to her employer. It claims the findings of the Commission were not supported by sufficient and competent evidence.

Standard of Review

Our review of the Commission’s decision is governed by Section 288.210, RSMo Supp.1995, which provides, in pertinent part:

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

We are not bound, however, by the Commission’s conclusions of law or the Commission’s application of law to the facts. Bunch v. Div. of Employment Sec., 965 S.W.2d 874, 877 (Mo.App.1998), Div. of Employment Sec. v. Taney County Dist. R-III, 922 S.W.2d 391, 393 (Mo.1996).

In Davis v. Research Med. Ctr., 903 S.W.2d 557, 571 (Mo.App.1995), we outlined the process for review of an award made by the Commission in worker’s compensation decisions where, as here, the Commission has, without hearing evidence itself, reversed the decision of a workers’ compensation administrative law judge. In Travelers Equities Sales, Inc. v. Div. of Employment Sec., 927 S.W.2d 912, 917 (Mo.App.1996), we held that the Davis standard was applicable to employment security decisions as well. Davis held that review is a two-step process. First, an appellate court must determine whether the wholé record, viewed in the light most favorable to the decision, contains sufficient competent and substantial evidence to support the Commission’s decision. Davis, 903 S.W.2d at 571. If it does, the court, in the second step, makes a determination as to whether the decision is against the overwhelming weight of the evidence. Id. In this second step, the reviewing court considers all of. the evidence in the record, including that not favorable to the decision. Id.

The Commission’s determination of whether an employee voluntarily left her employment or was discharged is a factual determination, and we will defer to the Commission as to its finding that the claimant left her employment voluntarily. Sokol v. Labor & Indus. Relations Comm’n, 946 S.W.2d 20, 24 (Mo.App.1997). However, the question of whether the claimant had good cause to leave her employment is a legal issue and thus we do not defer to the Commission’s determination on the matter. Id. at 26.

The Commission argues that Ms. Foley quit in lieu of certain discharge; that she had no choice. The Commission says it could be argued that Ms. Foley’s action in resigning was not a freewill, volitional act on her part because of the threat of imminent discharge. The Commission says this is a case of first impression; that there is no decision on whether the threat of imminent discharge constitutes good cause to voluntarily leave work. Quik ‘N Tasty counters that the decision, if upheld, would constitute the extension of unemployment benefits to those who were “constructively discharged.”

Neither the commission nor Quik ‘N Tasty is entirely correct. In Missouri Division of Employment Security v. Labor and Industrial Relations Comm’n, 739 S.W.2d 747 (Mo.App. W.D.1987), this court held that an employee who quit his employment in anticipation of a plant layoff had not left involuntarily and was therefore disqualified from benefits. The court did conceptually acknowledge that under some circumstances a quit or resignation from employment might not be voluntary. There is other authority for the principle that a resignation may, in fact, be considered involuntary and therefore a discharge. In Davis v. Labor and Industrial Relations Comm’n, 554 S.W.2d 541 (Mo.App. E.D.1977), the court acknowledged the principle that under a “pressure of the circumstances” test a resignation could be found nevertheless to be a “discharge” for purposes of unemployment compensation; the court rejected the employee’s argument for application of the rule in that case because there was substantial evidence to support the commission’s finding that he had not been “discharged.” 554 S.W.2d at 543.

The “pressure of the circumstances” test apparently first emerged in Missouri case law in Kilgore v. Industrial Commission, 337 S.W.2d 91 (Mo.App. S.D.1960).

“We agree with respondent that the mere fact that an employer leaves his job does not necessarily mean that the act is voluntary. Extraneous factors and surrounding circumstances must be taken into account and where pressure of circumstances compels termination by the employee, then the termination is involuntary.” Id. at 99.

Nevertheless, the court found that the claimant had not satisfactorily proved such pressure. The principle stated in Kilgore was later cited approvingly by the Supreme Court in Medical West Building Corp. v. E. L. Zoernig and Co., 440 S.W.2d 744, 748 (Mo.1969). Although not applied in an unemployment benefits context, the Court said, “[A]n employer may by its conduct either directly or indirectly force an employee to resign, without his resignation being voluntary.” The principle was acknowledged again in Clark v. Labor and Industrial Relations Comm’n, 549 S.W.2d 573, 574 (Mo.App. E.D.1977). See also McDonnell Douglas Corp. v. Labor and Industrial Relations Comm’n, 592 S.W.2d 295 (Mo.App.1979) (whether resignation from employment is voluntary or involuntary is determined by whether employee directly or indirectly exercised a free will choice).

The determination of whether an employee quits or is discharged is a factual one to which we would give great deference. Sokol, supra. We would be required to review, however, whether the law as applied to the facts would permit an award under such facts. We need not do so in this case because there was no factual finding by the Commission that Ms. Foley was constructively discharged or that she was acting under such duress that her resignation was not voluntary. To the contrary, the Appeals Referee and Commission both found that she voluntarily quit.

A claimant is not entitled to unemployment benefits if she voluntarily quits her job absent good cause attributable to her work or to her employer. Wingo v. Pediatric and Adolescent Med. Consultants, Inc., 932 S.W.2d 898, 899 (Mo.App.1996). It is the claimant who bears the burden of proving that her voluntary termination resulted from good cause attributable to her work or employer. Hessler v. Labor & Indus. Relations Comm’n, 851 S.W.2d 516, 518 (Mo.1993), O’Dell v. Div. of Employment Sec., 376 S.W.2d 137 (Mo.1964). In determining whether Ms. Foley met this burden, we are guided by Section 288.020, RSMo 1993, which directs that the unemployment security law be liberally construed so as to further the public policy of Missouri in setting aside unemployment reserves to benefit persons unemployed through no fault of their own. Sokol, 946 S.W.2d at 23. Section 288.050 provides that where an employee voluntarily quits her job, she must have good cause attributable to her work or employer to qualify for unemployment compensation benefits. The disqualifying provisions of Section 288.050 are strictly and narrowly construed in favor of finding an employee is entitled to compensation. Id. The legislative purpose of this statute is to create an incentive for persons who are employed to remain employed by withholding benefits from those who quit their job without good cause. Hessler, 851 S.W.2d at 518.

“Good cause” for purposes of determining eligibility for unemployment benefits has no fixed or precise meaning, and is judged by the facts of each case. Sokol, 946 S.W.2d at 24. “Good cause” has been interpreted to mean “cause that would motivate the average able-bodied and qualified worker in a similar situation to terminate his or her employment.” Hessler, 851 S.W.2d at 518, quoting Belle State Bank v. Indus. Comm’n, 547 S.W.2d 841, 846 (Mo.App.1977). Conditions which motivate the employee to voluntarily leave “must be real, not imaginary, substantial, not trifling, and reasonable, not whimsical, and good faith is an essential element.” Id. The determination of good cause is a question of law, and there are two elements of good cause-reasonableness and good faith. Bunch, 965 S.W.2d at 878.

Ordinarily, our inquiry would focus on whether the employee’s action in voluntarily terminating her employment was reasonable and whether the employee acted in good faith. Although the Commission argues that Ms. Foley acted reasonably and in good faith, we need not reach those issues and it would confuse the analysis to do so. , We do not disagree that Ms. Foley’s actions, subjectively measured, were reasonable from her point of view.

The good cause necessary to support an award of unemployment benefits where an employee voluntarily quits must be cause attributable to her work or her employment. An employee who voluntarily terminates may avoid the immediate benefit disqualification of Section 288.050 if the cause is attributable to her employer. O’Dell, 376 S.W.2d at 142. Whether the cause is so attributable involves the application of the law to the facts; that, therefore, is a question of law which we review independently of the Commission’s determination.- Travelers, supra. We agree with the conclusion in Hessler that the phrase “attributable to his work or to his employer” means “that it must be the work or employer himself that creates the condition making it unreasonable to expect this employee to continue work.” Hessler, 851 S.W.2d at 518.

The Commission makes no argument that any condition created by the employer, other than the suggestion to resign rather than be discharged, may itself wholly constitute “good cause” sufficient for the exception from benefit disqualification; nor do we believe that the prospective denial of a day off alone constitutes good cause. We do not consider whether such employer actions, if coupled with an already existing employer-created condition, might constitute good cause or a non-disqualifying voluntary termination because there is no such condition present here. The Commission award, therefore, erroneously applied the law.

We, therefore, reverse the Commission’s decision that Wendy Foley left her job voluntarily with good cause attributable to her work or to her employer. We remand to the Commission to enter an order consistent with this opinion.

EDWIN H. SMITH, Presiding Judge, and VICTOR C. HOWARD, Judge, concur.

      . Section 288.050 RSMo Supp.1997 provides, in part, for disqualification from benefits until wages have been earned equaling ten times the weekly benefit if the claimant "has left work voluntarily without good cause attributable to such work or to the claimant’s employer.”

      . The Commission argues the issue was present in Tin Man Enterprises, Inc. v. Labor & Industrial Relations Comm., 866 S.W.2d 147 (Mo.App.1993) but was not reached.

      . Claims of involuntary separation have also arisen in other factual circumstances such as (a) mandatory retirement, (b) leave of absence, (c) job ceasing to exist, (d) employee illness, (e) non-renewal of employment contract and others. See Board of Education v. Labor and Industrial Relations Comm’n, 633 S.W.2d 126 (Mo.App.1982), for a discussion of those types of cases. See also Wimberly v. Labor and Industrial Relations Comm'n, 688 S.W.2d 344 (Mo. banc 1985) dealing with whether pregnancy is "voluntary.”


author: THOMAS H. NEWTON, Judge.

text:
    AAA UNIFORM AND LINEN SUPPLY, INC., Appellant, v. BAREFOOT, INC., d/b/a Snake ‘N’ Rooter of Kansas City, Respondent.
    No. WD 57092.
    Missouri Court of Appeals, Western District.
    May 16, 2000.
    Alan B. Gallas, Kansas City, for appellant.
    Anthony A. Stein, Kansas City, for respondent.
    Before JOSEPH M. ELLIS, P.J., PAUL M. SPINDEN and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

AAA Uniform and Linen Supply, Inc. (AAA Uniform) sued Barefoot, Inc., d/b/a Snake ‘N’ Rooter of Kansas City (Barefoot) for balances due on its account and for breach of contract. After a court trial, AAA Uniform received judgment for $1,533.37 on the account action; Barefoot prevailed on the breach of contract action. AAA Uniform appeals the trial court’s ruling that the contract had been rescinded by mutual consent. We reverse the judgment and remand the case for further proceedings.

I. BACKGROUND AND PROCEDURAL HISTORY

For years, Paul .Heilman of AAA Uniform and Jeff Barefoot of Barefoot, were colleagues in the garment rental industry. When Mr. Barefoot acquired the drain cleaning and plumbing company in 1994, he contracted with Mr. Heilman for AAA Uniform to supply uniforms, towels, and mats.

In 1994 and 1996, AAA Uniform and Barefoot entered into written service rental agreements- for three-year terms. Under the agreements, AAA Uniform provided Barefoot with weekly services by delivering clean uniforms, towels, and mats. The agreements provided for cash on delivery, but allowed for approval of a ledger account. Through special arrangements of the parties, Mr. Barefoot paid flat amounts each month and paid the additional amounts due at the end of the year. The flat monthly payments increased from $400 in 1994, to $600 in 1995, and to $700 in 1996.

Business relations between AAA Uniform and Barefoot eventually became strained. AAA Uniform responded to Barefoot’s increased needs for uniforms, but the flat monthly payments left balances due at the end of the month. On numerous occasions, Mr. Heilman wrote Mr. Barefoot asking that the flat payments be increased. In early October 1997, Mr. Barefoot telephoned Mr. Heilman with complaints about the quality of the uniforms and the services. During that conversation, Mr. Heilman became angry and proposed picking up the rental merchandise from Barefoot if Mr. Barefoot did not like the services.

The business relationship between AAA Uniform and Barefoot ended after the exchange of letters. In AAA Uniform’s certified letter dated October 9, 1997, Mr. Heilman acknowledged receipt of $1,400 from Barefoot, but noted a remaining past due balance of $1,092.76. The letter demanded payment of the balance due by October 21, 1997 to continue business with AAA Uniform, and specified that Barefoot’s account would become cash on delivery on October 23, 1997 unless the balance due were paid in full. The letter concluded with a reference to Paragraph 4 of the 1996 rental service agreement. That provision allowed AAA Uniform to terminate the contract for any payment ten days overdue and to hold the customer liable for breach of contract. In Barefoot’s responsive letter dated October 20, 1997, Mr. Barefoot reiterated his complaints about the services and notified Mr. Heilman that he could go ahead and discontinue the services as he had threatened. The letter noted that the rental merchandise was awaiting pick-up. AAA Uniform collected its merchandise and stored it in a warehouse. Barefoot engaged a new supplier for its uniforms.

In the action for breach of contract, AAA Uniform sought damages based on provisions of the 1996 rental service agreement. Paragraph 3 provided for liquidated damages by requiring'the customer who cancelled the contract before its expiration to purchase of the rental inventory at thirty percent below the retail price and to pay lost profits of fifteen percent of the average weekly rental volume for the remaining weeks of the agreement. At the two-day court trial, Barefoot presented defenses of anticipatory repudiation, modification of the contract, lack of fair dealing, and unreasonable liquidated damages.

After taking the case under advisement, the trial court concluded that a mutual rescission of the contract had occurred, and denied AAA Uniform’s action for breach of contract. In the judgment, the trial court found that AAA Uniform’s October 9 th letter constituted an offer to rescind the contract, and that.Barefoot’s October 20th letter accepted that offer. The trial court then concluded that AAA Uniform was not entitled to liquidated damages for breach of contract, appeals. AAA Uniform

II. STANDARD OF REVIEW

Appellate review in this court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976): the trial court’s judgment will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Of significance here is the proviso in Murphy v. Carrón that can indicate a reversal when the trial court misapplies the law. In this situation, the appellate court independently evaluates the trial court’s application of the law. Burns v. Plaza West Associates, 979 S.W.2d 540, 545-46 (Mo.App. W.D.1998).

III. Legal Analysis

Appealing the denial of its breach of contract action, AAA Uniform challenges the trial court’s ruling that the parties mutually rescinded the 1996 service rental agreement. In support, AAA Uniform asserts that the letters exchanged failed to amount to an unequivocal offer and acceptance of a rescission. AAA Uniform also stresses that neither party presented any evidence of mutual rescission.

To establish rescission by mutual consent, the contracting parties’ acts and declarations must be inconsistent with the continued existence of the previous contract. See Tahan v. Garrick, Inc., 701 S.W.2d 189, 191 (Mo.App. E.D.1985). Moreover, proof of rescission must be clear, positive, unequivocal, and decisive, and it must manifest the parties’ actual intent to abandon contract rights. Cf. McBee v. Gustaaf Vandecnocke Revocable Trust, 986 S.W.2d 170, 173 (Mo. banc 1999).

In determining that a rescission by mutual consent had occurred, the trial court misapplied the law. Contrary to the

trial court’s findings, AAA Uniform’s October 9th letter contained no offer to rescind the contract. The letter stated in part:

Snake and Rooter owes $203.56 for August and the September balance of $889.20.
This $1,092.76 must be received [in] our office no later than Tuesday, October 21, 1997 to continue business with our company.
Your account will be COD effective Thursday, October 23, 1997 unless the $1,092.76 is paid in full before this date.
This notice references Paragraph # 4 in the rental agreement dated April 1, 1996.

That letter demanded payment in full and referred to the breach of contract provisions in the 1996 rental service agreement (paragraph # 4). Nothing in the October 9 th letter shows an unequivocal intent to abandon contract rights. As a matter of law, the October 9 th letter was not an offer to rescind the contract.

It becomes even more apparent that the parties did not intend a mutual rescission of the contract after a review of Barefoot’s October 20 th letter. The letter stated in part:

Last month, for the first time, your invoice was overlooked and when I recognized it, I sent both the previous month and the current month at the same time. For that, do you think I deserve a letter that demands payment and also threatens to discontinue doing business with us?
Paul, based on the fact that I have known you for years, I have overlooked a number of issues that have always bothered me. However, what has transpired recently has taken this to another level. You have forced me into a business decision that will probably be to the best interest of both parties. I can not continue to run my business with a vendor that is threatening and demeaning in his nature. It is unprofessional and unacceptable and based on a business code of ethics, should not have to be tolerated.
I will use your own effective date of Thursday, October 23, 1997. At that time, you can go ahead and discontinue your service, as you threatened. We will have all garments collected awaiting your pick-up. You have left us with no recourse but to look for a stable supplier.

Clearly, the tone of this letter is not that of an agreeable situation. Barefoot, to use his term, is responding to threats, and decides to discontinue the business relationship. Thus, Barefoot’s October 20 th letter could not constitute an acceptance of a nonexistent offer.

Furthermore, in this case, neither party’s pleadings or evidence raised the issue of mutual rescission of contract. A trial court’s power to decide questions is limited to those matters presented in the pleadings or tried by express or implied consent. See UT Communications Credit Corp. v. Resort Development, Inc., 861 S.W.2d 699, 706, 707 (Mo.App. E.D.1993).

Conclusion

We reverse the judgment oh the breach of contract action, and remand the case to the trial court for further proceedings. On remand the trial court should take additional evidence and hear argument as it deems necessary.

ELLIS and SPINDEN, JJ., concur.


author: JAMES K. PREWITT, Judge.

text:
    CITY OF CUBA, Missouri, Plaintiff, v. Ruth Ann WILLIAMS, Defendant/Appellant, v. Melinda “Mindy” James and Sandra Good, Third-Party Defendants/ Respondents.
    No. 23140.
    Missouri Court of Appeals, Southern District, Division Two.
    May 24, 2000.

      Martin Mazzei, Mazzei & Broshot, Steel-ville, V. Scott Williams, Hazelwood & Weber, L.L.C., St. Charles, for Appellant.
    Richard W. Wood, Williams, Robinson, White, Rigler & Parker, P.C., William H. Thomas, Jr., Thomas, Birdson & Becker, Rolla, for Respondent.
   JAMES K. PREWITT, Judge.

City of Cuba filed a two count petition against Appellant alleging negligent bailment of funds and conversion stemming from her employment as the collector of utility funds for the City. The petition alleges that Appellant negligently lost or converted funds in the sum of $152,052.00. Appellant subsequently sought leave of court to add James and Good as thirdparty defendants alleging a claim for contribution. Leave was granted and Appellant filed a Third Party Petition on February 23,1999.

Third-Party Defendants James and Good (hereinafter Respondents) filed a Motion for Summary Judgment on March 23, 1999, pleading the affirmative defense of release. Both Respondents had signed a Release between them and the City that released and discharged Respondents from any and all claims that may have resulted from the conversion or loss of funds set out in the petition.

Appellant filed an answer to the motion for summary judgment and her affidavit. The affidavit stated that affiant had been an employee of the City, that she was assisted in her job by Respondents, a brief description of Respondents’ employment duties, that an investigation of the missing funds had been conducted after a “flawed audit,” and that affiant believed that if the funds were missing, that Respondents were equally responsible. The affidavit did not raise any questions concerning the Release between the City and Respondents.

Summary judgment was entered in favor of Respondents on July 23, 1999. The court recited that “[pjursuant to Rule 74.01(b) of the Missouri Rules of Civil Procedure, the Court also determines that there is no just cause to delay entering Judgment as provided herein on the portion of the action which is disposed of by this judgment.”

When considering appeals from summary judgments, we review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion. Id.

“When a motion for summary judgment is made and supported as provided by rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise supported by rule, must set forth the specific facts showing that there is a genuine issue for trial. Rule 74.04.” Cavin v. Kasser, 820 S.W.2d 647, 649 (Mo.App.1991). Appellant did not do this, and thus her appeal must fail.

For her sole point on appeal, Appellant asserts that the entry of summary judgment in favor of Respondents was in error because the release was not given in good faith, was given in collusion between Plaintiff and its employees, and the release was not approved by the court prior to granting the summary judgment.

From the record, it does not appear that Appellant raised any of the arguments before the trial court that she now is asserting on appeal. On appeal, a party is bound by the position she took in trial court, and we can only review the case upon those theories. McGlothin v. Eidelman & Traub, Inc., 733 S.W.2d 851, 853 (Mo.App.1987). “Good faith” for the release as provided, in § 537.060, RSMo 1994, was not questioned in the answer or affidavit. Appellant is foreclosed from now raising a different theory from the theory considered and rejected by the trial court. Appellant’s point is denied.

The summary judgment is affirmed.

GARRISON, C.J., and BARNEY, J., concur.

      . All parties treat this as sufficient to allow this appeal and it appears that Rule 74.01(b) was substantially complied with.


text:
    Brandon VICKERS, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 23035.
    Missouri Court of Appeals, Southern District, Division Two.
    May 25, 2000.

      Kent Denzel, Asst. State Public Defender, Columbia, for appellant.
    Jeremiah W. Nixon, Atty. Gen., Susan K Glass, Asst. Atty. Gen., Jefferson City, for respondent.
   JAMES K. PREWITT, Judge.

Movant-Appellant appeals from the denial of his Rule 24.035 motion, in which he sought vacation of his conviction of stealing, including the sentence received therefor.

On March 4, 1996, Appellant received a 20-year sentence, pursuant to his plea of guilty to a class C felony of stealing and upon certification by the trial court of Appellant’s status as a prior and persistent offender (§§ 558.016 and 557.036.4, RSMo 1994).

The trial court had earlier made a finding that he was a prior and persistent offender, in that he had been adjudged guilty of forgery on July 23, 1994, and of property damage on November 28, 1994. On appeal from the denial of his initial Rule 24.035 motion, Appellant challenged his sentencing as a prior and persistent offender, contending that the prior convictions on which the trial court based its finding included a ■ non-existent forgery conviction (which should have been a felony stealing conviction). This District agreed that Appellant had been erroneously sentenced and ruled that the motion court erred in denying Appellant’s Rule 24.035 motion. Appellant’s sentence was vacated and the cause remanded for resen-tencing with directions that the State be allowed to amend the information and submit evidence to support Appellant’s repeat offender status. See Vickers v. State, 956 S.W.2d 405 (Mo.App.1997), cert. denied, 525 U.S. 1125, 119 S.Ct. 909, 142 L.Ed.2d 907 (1999).

On remand, the amended information alleged previous convictions of property damage and stealing, and the State presented certified copies (amended and filed August 21,1996) of the judgments as proof of Appellant’s prior convictions. On January 28, 1998, Appellant received an enhanced sentence of twenty years’ imprisonment on the felony charge of stealing.

Appellant filed a pro se motion pursuant to Rule 24.035, which was subsequently amended by appointed counsel, who also requested a change of judge. In his motion, Appellant contended that his twenty-year sentence was disproportionate to the crime and that the maximum sentence was imposed in retaliation for him asserting his right to a jury trial. On September 25, 1998, the trial court overruled Appellant’s motion for change of judge. An evidentia-ry hearing was held on February 8, 1999, before the Honorable George C. Baldridge, the judge who presided over Appellant’s plea hearing, sentencing and prior post-conviction hearing. Appellant was not present but was allowed to present testimony via deposition taken November 17, 1998. In an attempt to elicit an explanation for the maximum sentencing, counsel endorsed Judge Baldridge as a witness for Appellant. The judge, at the request of Appellant’s counsel, testified.

On May 4, 1999, the court issued its findings, conclusions and judgment, denying all relief requested by Appellant. This appeal followed. Appellant presents three points relied on.

For his first point, Appellant asserts that the trial court erred in denying his motion “because the sentencing court punished him in retaliation for exercising his right to a jury trial.” In the findings of fact and conclusions of law, the court found:

Movant claims that evidence of bias exists. He points to the fact that his codefendant received a five-year sentence, while he received a twenty-year sentence. This fact is irrelevant. Mov-ant received a twenty-year sentence because he rejected the State’s initial plea offers and chose to proceed to trial. The sentence imposed is thus no fault of the Court.

The trial court cannot use the sentencing process to punish a defendant for exercising his right to proceed to trial. State v. Lindsey, 996 S.W.2d 577, 580 (Mo.App.1999). Any enhancement of a defen dant’s sentence based on this fact would improperly punish a defendant for exercising his or her right to a full and fair trial to a jury. State v. Wright, 998 S.W.2d 78, 84 (Mo.App.1999). Whether a defendant exercises his or her constitutional right to trial by jury to determine one’s guilt or innocence must have no bearing on the sentence, and the court may not use the sentencing process to punish a defendant, guilt notwithstanding, for exercising his or her right to receive full and fair trial. State v. Vaughn, 940 S.W.2d 26, 29 (Mo.App.1997).

Appellant relies on Thurston v. State, 791 S.W.2d 893 (Mo.App.1990), where the Eastern District found that the sentencing judge admitted to a consistent practice over twelve years of imposing the maximum possible sentence for all prior offenders who refused to plead guilty and insisted on going to trial, and that “movant’s fate, if found guilty by the jury, was fixed at the maximum allowable punishment from the very moment movant refused to plead guilty.” Id. at 897.

Thurston explains that no consideration of other factors, such as the nature of the crime, defendant’s background, nor any further case-by-case or defendant-by-defendant evaluation was involved in the sentencing judge’s imposition of the maximum allowable sentence, and that such automatic sentencing of “the maximum allowable sentence without any consideration of the varying circumstances of the crimes committed or the background and character of the different defendants [Id.. at 897-98]” does not fulfill the affirmative duty imposed upon a trial judge under Section 557.086.1, RSMo.

“A practice which discourages the Fifth Amendment right not to plead guilty, which deters the Sixth Amendment right to demand a jury trial and which chills the assertion of these constitutional rights by penalizing those who choose to exercise them is patently unconstitutional.” Id. at 896, citing United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216; 20 L.Ed.2d 138,147 (1968). “Enhancement of punishment based solely upon a defendant’s refusal to plead guilty and to exercise his right to have his guilt proven beyond a reasonable doubt has been universally condemned.” Thurston, at 896.

In State v. Wright, supra, on which Appellant also relies, the Western District ruled that the trial court’s imposition of consecutive sentences violated defendant’s constitutional right to proceed to trial, in that the trial court “specifically stated on the record that [its] decision to order consecutive sentences was influenced by Defendant’s decision to go to trial and so to ‘require’ the victims to testify.” Id. at 84. Acknowledging a departure from its decision in State v. Lindsey, supra, the Western District distinguished its ruling in Wright, citing to the comments made by the court at sentencing which indicated that a longer sentence was imposed based, in part, on the defendant’s decision to go to trial.

Respondent cites State v. Vaughn, supra, wherein a maximum allowable sentence of ten years for a DWI conviction as a repeat offender was the issue of the appeal, as appellant contended the trial court may have been influenced by the State’s request to punish appellant “for exercising his constitutional right to a jury trial.” Vaughn, 940 S.W.2d at 28. There, the,Southern District found there was no indication that appellant’s decision to go to trial was a factor in the trial court’s imposition of the sentence (“In fact, the trial judge enunciated several factors that did influence her decision at the sentencing hearing, none of which included Defendant’s choice to exercise his right to trial.” Id. at 29.) This District concluded that the appellant’s contention was not supported by the record.

State v. Lindsey, supra, also cited by Respondent, is distinguished from the present appeal in that statements made by the trial court there “reflect consideration of both [Appellant’s] crime and [Appellant] himself.” Id. at 580. Justification for its decision included the following: that the trial court made no mention of appellant’s refusal to plea bargain or appellant’s insistence to proceed to trial; and, there was no evidence of a pattern on the trial court’s behalf of imposing maximum sentences to those who elect to go to trial.

In State v. Brewster, 836 S.W.2d 9 (Mo.App.1992), also cited by Respondent, the appellant requested remand for re-sentencing, contending he was penalized for demanding a trial by jury and that the court’s consecutive sentences enhanced the “general deterrent affect.” The conviction was affirmed, with the Eastern District finding that the trial court considered several factors in deciding on consecutive sentences, including appellant’s lack of remorse, pré-sentencing reports, and there was “no indication the court's sentence punished movant solely for going to trial.” Id. at 15.

We conclude that the reasoning set forth in Thurston and Wright apply here. Vaughn, Lindsey, and Brewster indicate that the sentences at issue there were based upon proper factors and not as punishment for the defendant’s exercise of his right to a jury trial.

Here, the trial judge expressly found that Appellant “received a twenty-year sentence because he rejected the State’s initial plea offer and chose to proceed to trial.” We agree with the Respondent that this could conceivably be construed to mean that it was Appellant’s rejection of the plea agreement which caused him to receive a more severe sentence, but the court also stated that Appellant received the sentence because he chose to proceed to trial. This latter finding, and the lack of any other basis in the record@ explaining why his sentence was much more severe than that of his co-defendant, leads us to conclude that Appellant must be re-sentenced. Point I has merit.

For his second point, Appellant contends that the judge who presided over the hearing on his motion should have recused because he was going to be called as a witness.

We agree that forcing recusal of a judge simply by endorsing him as a witness will frustrate an important purpose of Rule 24.035, such as avoiding delay in the processing of the claims and preventing litigation of stale claims. See State v. Wise, 879 S.W.2d 494, 523 (Mo.banc 1994). Absent a compelling reason to call the judge as a witness at a post-conviction hearing, the judge is not disqualified from ruling on the motion. Wright-El v. State, 890 S.W.2d 664, 672 (Mo.App.1994).

A judge who is a material witness to relevant facts, however, is compelled to recuse himself for fundamental fairness as guaranteed by state and federal due process clauses. Garrison v. State, 992 S.W.2d 898, 902 (Mo.App.1999), citing Haynes v. State, 937 S.W.2d 199, 202, 203-04 (Mo.banc 1996). Here, as there was an adequate and reasonable basis for calling the judge to testify, we conclude that he should have recused, and he should not participate any further in this matter, except perhaps as a witness, although we do not at present perceive why that would be necessary.

Appellant’s third point is an “alternative” point to Point II. In view of our ruling on the first two points, it is not necessary to reach the third point.

The portion of the judgment upholding the conviction of the Appellant is affirmed. The portion of the judgment denying the motion to vacate and set aside the sentence imposed is reversed, and the cause is remanded solely for the purpose of re-sentencing after consideration of the nature and circumstances of the offense and the history and character of the Appellant, as required by Section 557.036, RSMo. Supp.1996.

MONTGOMERY, P.J., and BARNEY, J., concur.

      . In the course of the trial on this matter and after the State had presented evidence, Appellant withdrew his plea of not guilty and entered a plea of guilty.

      . Appellant had been charged with stealing in connection with the theft of an automobile. His partner in the crime, who had been driving the vehicle when the two were apprehended, entered a guilty plea and received a five-year sentence and was subsequently granted probation under Section 559.115, RSMo.

      . By so finding, we emphasize that we understand why, in accordance with the case law and rules holding that in the interest of judicial economy judges should not recuse except when necessary, the judge, in whose character and determinations we have the utmost respect, did not recuse here.