author: JEFFREY W. BATES, Chief Judge.

text:
    Jerry D. HARDESTY, Plaintiff-Appellant, v. CITY OF BUFFALO, a Municipal Corporation, Defendant-Respondent.
    No. 26036.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 7, 2004.
    Motion for Rehearing and Transfer Denied Dec. 28, 2004.
    Application for Transfer Denied March 1, 2005.

      James M. Kelly, Republic, MO, for Appellant.
    M. Douglas Harpool, Kristoffer R. Bare-field, Springfield, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

Jerry Hardesty (“Hardesty”) appeals from an adverse judgment entered in a declaratory judgment action he brought against the City of Buffalo (“the City”) after he was removed as Chief of Police. In Hardesty’s lawsuit, he sought a judgment declaring that his removal from this appointed office was invalid because the City failed to comply with § 79.240. The trial court concluded the City’s action was authorized by § 79.120, so Hardesty’s lawsuit was dismissed with prejudice. Har-desty challenges this ruling as erroneous. We affirm.

I. Facts and Procedural History

The facts in this case are straightforward and undisputed. The City is located in Dallas County, Missouri, and is subject to all state statutes governing cities of the fourth class, including those set forth in Chapter 79, RSMo. One of the appointive offices established by the City, pursuant to § 79.050 and § 79.230, is Chief of Police. Hardesty was the duly-appointed and acting Chief until October 13, 2003, when he was removed from office. On that date, the six elected members of the City’s board of aldermen were evenly divided on the issue of whether Hardesty should continue as Chief. Three aldermen voted against Hardesty’s removal, and three aldermen voted for his removal. The Mayor cast the tie-breaking vote to remove Har-desty from office.

On October 28, 2003, Hardesty filed a declaratory judgment action against the City. In the lawsuit, Hardesty alleged his removal from office violated § 79.240 because it had not been done “with the consent of a majority of all the members elected to the board of aldermen....” Hardesty claimed he could not be removed from office in compliance with § 79.240 unless four of the six persons elected as aldermen voted to remove him. The City’s answer admitted that the factual allegations in the petition were true, but denied that Hardesty had been improperly removed from office.

In November 2003, the City filed a motion for judgment on the pleadings. This motion was granted by the trial court on December 31, 2003. The reasons for the court’s ruling were contained in a docket entry stating, in pertinent part, as follows:

The legal issue and factual setting of the instant case are identical with [the] Eastern District Court of Appeals decision in State ex rel. Ciaramitaro v. City of Charlack, 679 S.W.2d 405 (1984).... After considerable thought this court holds that section 79.120 RSMo . controls, and agrees that this statute effectively makes the mayor a member of the Board of Aldermen for the exclusive purpose of casting tie breaking votes. This tie breaking authority is not limited to only certain types of actions of the Board of Aldermen as advocated by Plaintiffs counsel.

After entry of a judgment dismissing Har-desty’s case with prejudice, he filed a timely notice of appeal.

II. Standard of Review

Because the trial court granted the City’s motion for judgment on the pleadings, we review the allegations of Hardesty’s petition to determine whether the facts pled therein are insufficient as a matter of law. RGB2, Inc. v. Chestnut Plaza, Inc., 103 S.W.3d 420, 422 (Mo.App.2003); Green v. Lebanon R-III School Dist., 87 S.W.3d 365, 367 (Mo.App.2002). For the purposes of such a motion, the moving party admits the truth of all well-pleaded facts in the opposing party’s pleadings. State ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122, 134 (Mo. banc 2000). A trial court properly grants a motion for judgment on the pleadings if, from the face of the pleadings, the moving party is entitled to a judgment as a matter of law. Craig v. Missouri Dept. of Health, 80 S.W.3d 457, 459 (Mo. banc 2002).

III. Discussion and Decision

Hardesty’s appeal presents a single issue for our determination. He argues that his removal from the appointive office of Chief of Police was invalid because the City did not comply with the requirements of § 79.240, which states:

The mayor may, with the consent of a majority of all the members elected to the board of aldermen, remove from office, for cause shown, any elective officer of the city, such officer being first given opportunity, together with his witnesses, to be heard before the board of aider-men sitting as a board of impeachment. Any elective officer, including the may- or, may in like manner, for cause shown, be removed from office by a two-thirds vote of all members elected to the board of aldermen, independently of the may- or’s approval or recommendation. The mayor may, with the consent of a majority of all the members elected to the board of aldermen, remove from office any appointive officer of the city at will, and any such appointive officer may be so removed by a two-thirds vote of all the members elected to the board of aldermen, independently of the mayor’s approval or recommendation. The board of aldermen may pass ordinances regulating the manner of impeachments and removals.

(Italics added.) As previously noted, the City has six elected aldermen. Hardesty interprets the phrase, “with the consent of a majority of all the members elected to the board of aldermen” to mean that four of the six elected aldermen had to vote in favor of his removal as Chief of Police for that decision to comply with § 79.240.

The trial court, however, concluded that Hardesty was properly removed from office because there was a tie vote among the elected aldermen on this question, which permitted the Mayor to cast the deciding vote. The trial court based its decision on § 79.120, which states:

The mayor shall have a seat in and preside over the board of aldermen, but shall not vote on any question except in case of a tie, nor shall he preside or vote in cases when he is an interested party. He shall exercise a general supervision over all the officers and affairs of the city, and shall take care that the ordinances of the city, and the state laws relating to such city, are complied with.

(Italics added.) As the trial court noted in its docket entry, State ex rel. Ciaramitaro v. City of Charlack, 679 S.W.2d 405 (Mo.App.1984) does support the conclusion that § 79.120 authorized the mayor to break the tie vote concerning whether to retain or remove Hardesty. In Charlack, Ciara-mitaro was dismissed as the Chief of Police for the City of Charlack after the mayor recommended her dismissal to the four-member board of aldermen. Two aldermen voted in favor of dismissal, and two aldermen voted against dismissal. The mayor broke the tie by voting in favor of Ciaramitaro’s dismissal. Ciaramitaro sought a writ of mandamus to compel the City of Charlack to reinstate her as Chief of Police. The trial court granted the writ. Charlack, 679 S.W.2d at 406. The City of Charlack appealed, arguing that § 79.120 authorized the mayor to break a tie among the aldermen even though the question to be decided concerned the removal of an officer pursuant to § 79.240. The Eastern District of this Court agreed and reversed the trial court’s judgment:

Although we have found no Missouri cases addressing whether a mayor is considered one of the “members elected to the board of aldermen” under § 79.240, substantially the same language appears in § 79.130, which requires a majority of the members elected to the board to approve an ordinance before it becomes law. In Mound City ex rel. Reinert Bros. Const. Co. v. Shields, 220 Mo.App. 798, 278 S.W. 798 (1925), the court held that § 8404 RSMo 1919, now § 79.120, gives the mayor the right to cast the tie-breaking vote when the question before the board of aider-men concerns the passage of an ordinance. 278 S.W. at 801[4]; see also Grant City v. Salmon, 221 Mo.App. 853, 288 S.W. 88, 90 (1926). If § 79.120 effectively makes the mayor a member of the board of aldermen for purposes of resolving a tie among the aldermen under § 79.130, then under § 79.120 the mayor has the right to break a tie vote when the question before the board arises under § 79.240.
Section 79.120 gives the mayor the authority to break a tie vote on any question before the board. Thus, the mayor may cast a tie-breaking vote regardless of whether the board is considering the passage of an ordinance, the removal of an officer, or some other proposed action. The phrase “members elected to the board of aldermen,” within the context of §§ 79.130 and 79.240, simply reinforces the idea that the questions of approval of an ordinance or of removal of an officer are questions to be answered by the board of aldermen; the question of how tie votes are resolved is not answered by either § 79.130 or § 79.240.

Id. at 407.

Hardesty acknowledges that the trial court correctly applied Charlack in the instant case, but he complains that “the holding in Charlack is fundamentally and logically flawed, disregards the plain wording of the applicable statute, and disregards rules of statutory construction.” We disagree.

The statutes now codified as § 79.120, § 79.130 and § 79.240 were originally enacted by the General Assembly in 1895 as part of one act regulating cities of the fourth class. See 1895 Mo. Laws 67, 68 and 77. Section 7 of the Act, which is now § 79.120, stated:

The mayor shall have a seat in and preside over (over) the board of aider-men, but shall not vote on any question except in case of a tie, nor shall he preside or vote in cases when he is an interested party. He shall exercise a general supervision over all the officers and affairs of the city, and shall take care that the ordinances of the city, and the state laws relating to such city, are complied with.

1895 Mo. Laws 67 (parenthetical in original). This statute has remained unchanged since 1895. Section 11 of the Act, which is now § 79.240, stated:

The mayor may, with the consent of a majority of all the members elected to the board of aldermen, remove from office, for cause shown, any elective officer of the city, such officer first being given opportunity, together with his witnesses, to be heard before the board of aider-men sitting as a board of impeachment. Any elective officer, including the may- or, may in like manner, for cause shown, be removed from office by a two-thirds vote of all the members elected to the board of aldermen, independently of the mayor’s approval or recommendation. The mayor may, with the consent of a majority of all the members elected to the board of aldermen, remove from office any appointive officer of the city at will, and any such appointive officer may be so removed by a two-thirds vote of all the members elected to the board of aldermen, independently of the mayor’s approval or recommendation. The board of aldermen may pass ordinances regulating the manner of impeachments and removals.

1895 Mo. Laws 68. This statute also has remained unchanged since 1895. Section 62 of the Act, which is now § 79.130, stated:

The style of the ordinances of the city shall be: “Be it ordained by the board of aldermen of the city of_as follows.” No ordinance shall be passed except by bill, and no bill shall become an ordinance unless on its final passage a majority of the members elected to the board of aldermen shall vote for it, and the ayes and nays be entered on the journal; and all bills shall be read three times before their passage. No ordinance shall be revived or re-enacted by mere reference to the title thereof, but the same shall be set forth at length, as if it were an original ordinance. No bill shall become an ordinance until it shall have been signed by the mayor or person exercising the duties of the mayor’s office, or shall have been passed over the mayor’s veto, as hereinafter provided.

1895 Mo. Laws 77. In the respects material here, this statute likewise has remained unchanged since 1895.

The primary rule of statutory construction is to give effect to legislative intent as reflected in the plain language of the statute. State v. Blocker, 133 S.W.3d 502, 504 (Mo. banc 2004). Each word or phrase in a statute must be given meaning if possible. Id. In addition, provisions of an entire legislative act must be construed together and if reasonably possible all provisions must be harmonized. Community Fed. Sav. & Loan v. Director of Revenue, 752 S.W.2d 794, 798 (Mo. banc 1988); Collins v. Director of Revenue, 691 S.W.2d 246, 251 (Mo. banc 1985); Blaine v. J.E. Jones Const. Co., 841 S.W.2d 703, 711 (Mo.App.1992). When we construe § 79.120 and § 79.240 together, as we must, these two statues can be reasonably harmonized in a fashion that gives effect to the plain meaning of the words and phrases used by the General Assembly in each statute.

We begin by noting that there is no constitutional or statutory provision specifying what constitutes a quorum for a board of aldermen in a fourth class city. In the absence of such a provision, the common law rule applies: a quorum is a majority of all the members of the board of aldermen. State ex rel. Otto v. Kansas City, 310 Mo. 542, 276 S.W. 389, 404 (1925); State ex rel. Kiel v. Riechmann, 239 Mo. 81, 142 S.W. 304, 312 (1911). So long as a quorum of the board of aldermen is present, the transaction of a fourth class city’s general business can be conducted. See City of Rolla v. Schuman, 189 Mo.App. 252, 175 S.W. 241, 243 (1915). Thus, four members of the City’s board of aider-men would constitute a quorum; an affirmative vote from three of those four aider-men would be sufficient to transact the City’s general business. Id.; see also Trusler v. Tate, 941 S.W.2d 794, 800-01 (Mo.App.1997).

There are two statutes in Chapter 79, however, which prohibit certain proposed actions from being approved by a mere majority of a quorum of the City’s board: (1) the passage of ordinances, § 79.130; and (2) the removal of officers, § 79.240. These particular actions require the consent and/or approval of a majority of the elected members of the board of aldermen to be effective. We believe “elected” was included for a reason: to raise the minimum number of affirmative votes which must be cast — before an ordinance is passed or an officer is removed— from a majority of a quorum of aldermen to a majority of the entire elected board of aldermen.

Applying this principle to the case at bar, § 79.240 states, in pertinent part, that “[t]he mayor may, with the consent of a majority of all the members elected to the board of aldermen, remove from office any appointive officer of the city at will.... ” Because the City’s board of aldermen is comprised of six members, we interpret the foregoing language to impose a requirement that there be four affirmative votes in order to remove an appointive officer like Chief of Police.

Hardesty argues, however, that this language also should be interpreted to preclude anyone except an elected member of the board of alderman from casting one of the four required affirmative votes, even when the entire board is equally divided on the question of removal. We reject this argument as inconsistent with the plain language of § 79.120 and contrary to longstanding Missouri precedent.

As previously noted, § 79.120 states, in pertinent part, that “[t]he mayor shall have a seat in and preside over the board of aldermen, but shall not vote on any question except in case of a tie, nor shall he preside or vote in cases when he is an interested party.” Thus, the only statutory exception to a mayor’s authority to resolve a tie vote occurs when the mayor is an interested party and the interest is either directly personal or pecuniary. City of Velda City v. Williams, 98 S.W.3d 880, 883 (Mo.App.2008); Hammer v. City of Osage Beach, Missouri, 318 F.3d 832, 838 (8th Cir.2003). Since the mayor is entitled to break a tie vote on “any question” except when he or she is an interested party, we conclude this tie-breaking authority extends to any matter which is properly before the board of aldermen for a vote, including a vote to remove an appointive officer pursuant to § 79.240. See Charlack, 679 S.W.2d at 407; 56 AM. JUR.2D Municipal Corporations § 154 (2000) (“[w]here the statute provides that the mayor shall have a casting vote in the case of a tie and does not limit this casting vote to any particular kind or class of business it extends to all matters which may properly come before the board”). We would not be giving the phrase, “any question,” its plain and ordinary meaning if we construed it to include less than all matters properly coming before the board of aldermen for a vote. See, e.g., Singer v. Siedband, 138 S.W.3d 750, 753 (Mo.App. 2004) (plain and ordinary meaning of the phrase “any person injured thereby” is not limited to a particular type of person).

We find this interpretation particularly reasonable here since the predecessor statutes to § 79.120, § 79.130 and § 79.240 all were adopted at the same time as part of one act. If the legislature had intended to prevent a mayor from breaking tie votes involving the passage of an ordinance or removal of an officer, § 79.120 would have been drafted to include these limitations along with the existing prohibition against the mayor breaking a tie vote when he or she is an interested party.

Just as importantly, the General Assembly is presumed to be aware of the interpretation placed upon existing statutes by this state’s appellate courts. Kilbane v. Director of Dept. of Revenue, 544 S.W.2d 9, 11 (Mo. banc 1976). A court’s construction of statutory language becomes a part of the statute as if it had been so amended by the General Assembly. State v. Crawford, 478 S.W.2d 314, 317 (Mo.1972). In Mound City ex rel. Reinert Bros. Const. Co. v. Shields, 220 Mo.App. 798, 278 S.W. 798, 801 (1925), the Western District of this Court held that, even though § 79.130 establishes the requirements for passage of an ordinance, § 79.120 is controlling and authorizes the mayor to cast the deciding vote in case of a tie. In Charlack, the Eastern District of this Court held that, even though § 79.240 establishes the requirements for removal of an appointed officer, § 79.120 is controlling and authorizes the mayor to cast the deciding vote in case of a tie. Charlack, 679 S.W.2d at 407-08.

Since Mound City was decided in 1925, there have been wholesale changes made to Chapter 79. Most of the existing statutes found therein have been amended, and a number of new statutes have been added to this chapter. At no time, however, has the General Assembly amended § 79.120 so as to abrogate the construction placed upon it by Mound City or Charlack. “The general rule is that where an act is amended the parts retained are regarded as a continuation of the former law and are entitled to receive the same construction.” Wring v. City of Jefferson, 413 S.W.2d 292, 300 (Mo. banc 1967). Under these circumstances, we believe that if the General Assembly had intended to prevent a mayor from exercising the authority granted him or her by § 79.120 to break a tie vote involving passage of an ordinance or removal of an officer, the General Assembly would have expressly done so in an amendment to this statute. See State ex rel. School District of City of Independence v. Jones, 653 S.W.2d 178, 187 (Mo. banc 1983).

In conclusion, we hold that Hardesty was properly removed from his appointive office as Chief of Police. Once the six elected aldermen voted and there was a 3-3 tie on the question before the board, the Mayor was authorized by § 79.120 to break the tie and cast the deciding vote. Charlack was properly decided and is controlling here. Therefore, the trial court’s judgment is affirmed.

SHRUM and BARNEY, JJ., Concur.

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

      . Section 79.130 was amended in 1988 and now states: "The style of the ordinances of the city shall be: 'Be it ordained by the board of aldermen of the city of., as follows:’ No ordinance shall be passed except by bill, and no bill shall become an ordinance unless on its final passage a majority of the members elected to the board of aldermen shall vote for it, and the ayes and nays be entered on the journal. Every proposed ordinance shall be introduced to the board of aldermen in writing and shall be read by title or in full two times prior to passage, both readings may occur at a single meeting of the board of aldermen. If the proposed ordinance is read by title only, copies of the proposed ordinance shall be made available for public inspection prior to the time the bill is under consideration by the board of aldermen. No bill shall become an ordinance until it shall have been signed by the mayor or person exercising the duties of the mayor's office, or shall have been passed over the mayor's veto, as herein provided.”

      . Cf. § 79.552, which applies to fourth class cities and authorizes an eligible municipality to create a nine-member municipal redevelopment authority. Subsection 3 of this statute states that "[fjive members of the authority shall constitute a quorum, and any action or order of the authority shall require the approval of at least five members."

      . The mayor of a fourth class city does not constitute a member of the board of aldermen for the purpose of determining whether a quorum is present. See Reynolds County Telephone Co. v. City of Piedmont, 152 Mo.App. 361, 133 S.W. 141, 142 (1911).

      . See, e.g., § 79.020 (amended in 1949 and 1978); § 79.030 (amended in 1978 and 1989); § 79.035 (added in 1981); § 79.040 (amended in 1949 and 1978); § 79.050 (amended in 1961, 1987, 1988, 1989 and 1998); § 79.055 (added in 1997); § 79.070 (amended in 1986 and 1999); § 79.080 (amended in 1986); § 79.090 (amended in 1983); § 79.130 (amended in 1988); § 79.160 (amended in 1979); § 79.165 (added in 1951 and amended in 1979); § 79.170 (repealed in 1978); § 79.190 (amended in 1993); § 79.250 (amended in 1967, 1969, 1978, 1987 and 1994); § 79.280 (amended in 1978, 1982, 1985, 1989 and 1999); § 79.365 (added in 1997 and amended in 1998); § 79.380 (amended in 1969); § 79.383 (added in 1993); § 79.420 (repealed in 1988); § 79.450 (amended in 1971); § 79.460 (amended in 1978); § 79.470 (amended in 1971); § 79.480 (added in 1933); § 79.490 (amended in 1978 and 1987); § 79.495 (added in 1987); § 79.550 (amended in 1988 and 1990); § 79.552 (added in 1988 and amended in 1990 and 1995); § 79.555 (added in 1988); § 79.557 (added in 1988); § 79.560 (added in 1988 and amended in 1990); and § 79.565 (added in 1988 and amended in 1990).


source: Caselaw Access Project

license: Public Domain

text:
    Edwin ROEDER, M.D., Plaintiff-Respondent, v. FERRELL-DUNCAN CLINIC, INC., Defendant-Appellant.
    No. 25845.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 23, 2004.
    Application for Transfer to Supreme Court Denied Jan. 14, 2005.
    Application for Transfer Denied March 1, 2005.

      Michael J. Cordonnier and Rick E. Temple, Springfield, MO, for Appellant.
    Mathew W. Placzek and Angela Desanc-tis Myers, Springfield, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

Ferrell-Dunean Clinic, Inc. (“FDC”) appeals from a judgment refusing to enforce a non-compete clause in FDC’s contract of employment with Dr. Edwin Roeder (“Dr. Roeder”). The trial court found the non-compete clause unenforceable because FDC breached the employment contract by assigning the right to control Dr. Roe-der’s professional services to Lester E. Cox Medical Centers (“Cox”) without Dr. Roeder’s consent.

FDC presents two issues on appeal. First, FDC contends the trial court erred in finding that Dr. Roeder’s contract to perform professional medical services could not be assigned to Cox without his consent. Second, FDC contends the trial court erred in concluding that the assignment to Cox constituted a material breach of contract because this conclusion is not supported by the evidence and is based on a misapplication of the law. Finding no merit in either point, we affirm.

I. Standard of Review

In this court-tried case, our review is governed by Rule 84.13(d). We must affirm the trial court’s judgment unless it is not supported 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); Ridgway v. TTnT Development Corp., 126 S.W.3d 807, 812 (Mo.App.2004). A judgment is presumed correct, and the appellant has the burden of proving it erroneous. Wingate v. Griffin, 610 S.W.2d 417, 419 (Mo.App.1980). We review the evidence and all reasonable inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences. Arndt v. Beardsley, 102 S.W.3d 572, 574 (Mo.App.2003). Credibility of the witnesses and the weight to be given to their testimony is for the trial court, which is free to believe none, part, or all of the testimony of any witness. Keller v. Friendly Ford, Inc., 782 S.W.2d 170, 173 (Mo.App.1990). We defer to the trial judge’s superior opportunity to assess the witnesses’ credibility. Harris v. Lynch, 940 S.W.2d 42, 45 (Mo.App.1997). No such deference is afforded the trial court, however, when we review its conclusions of law. We independently evaluate whether the trial court properly declared or applied the law to the facts presented. Schubert v. Trailmobile Trailer, L.L.C., 111 S.W.3d 897, 899 (Mo.App.2003); Rathbun v. CATO Corp., 93 S.W.3d 771, 777 (Mo.App.2002). Our summary of the evidence presented at trial, which is set forth below, has been prepared. in accordance with these principles.

II. Facts and Procedural History

Dr. Roeder is a physician specializing in orthopedic surgery. He completed his residency in that specialty in 1997. In 1996, approximately one year before the conclusion of his Texas residency program, he began looking for a job. He made two trips to Springfield, Missouri, that year to interview with FDC, which is a multi-spe-cialty medical clinic employing a large number of physicians. After the interviews were finished, FDC offered Dr. Roe-der a position in orthopedics beginning in August 1997.

Dr. Roeder received by mail a proposed contract of employment. The contract, which had been drafted by FDC, was an individual agreement between the clinic and Dr. Roeder. The agreement generically referred to FDC as the “Corporation” and Dr. Roeder as “Doctor.” This nine page, single-spaced document contained a number of provisions pertinent to the issues here:

1.The first “WHEREAS” clause of the contract stated that FDC was “a Missouri corporation organized to provide professional services through employment of qualified and duly licensed physicians.... ”
2. The second “WHEREAS” clause of , the contract stated, in pertinent part, that “the parties desire to initiate an employment relationship upon the terms and conditions hereinafter set forth.... ”
3. Paragraph 2 stated, in pertinent part, that Dr. Roeder “is hereby employed by the Corporation to serve as a practicing physician in connection with the professional practice conducted by the Corporation. The Doctor agrees that all acts and procedures pertaining to the practice of medicine performed during the term of his employment by the Corporation ... shall be for the sole and exclusive benefit of the Corporation which shall be authorized and entitled to receive and collect the said fees and compensation for the services rendered by the Doctor. It is agreed that the Corporation is authorized to assign its obligation to collect said fees and compensation for the services rendered by the Doctor....”
4. Paragraph 13 states, in pertinent part, that “[t]he ■ relationship between the Corporation and the Doctor is that of employer and employee. As an employee the Doctor shall be entitled to participate in any health and disability benefit plans, group life insurance plans, pension and profit sharing plans, or any other benefits offered employees.... ”
5. Paragraph 16 contained an agreement not to compete which imposed “restrictions on the Doctor’s right to practice medicine in competition with the Corporation” for 24 months. This provision had a territorial scope of 10 air miles from FDC’s buildings in Springfield, Missouri, and Bran-son, Missouri.
6. Paragraph 18 stated, in pertinent part: “APPLICABLE LAW. This contract is drawn to be effective in, and shall be construed in accordance with, the laws of the State of Missouri. No amendments or variations of the terms of this Contract shall be valid unless made in writing and signed by the Doctor and a duly authorized representative of the Corporation.... This Contract shall be binding upon and inure to the benefit of the parties hereto, their successors, heirs, beneficiaries, assigns and personal representatives.”

Because the contract’s compensation provision was a production-based model, Dr. Roeder had some concerns which he discussed by telephone with FDC’s executive director, Charles McCracken. With McCracken’s consent, Dr. Roeder added the following hand-written notations in the margin of the contract before signing it and returning it to FDC: (1) “Physician compensation percentage equal for all orthopedic surgeons”; and (2) “Decision to change compensation percentage will be made by general membership!!]” In December 1996, Dr. Roeder signed the contract and mailed it back to FDC. McCracken initialed the changes to show his approval and then had the contract signed by FDC’s president. In August 1997, Dr. Roeder moved to Springfield and began working for FDC.

All of the doctors employed by FDC become eligible to purchase one share of stock in the corporation after one year of employment. Only physicians may purchase stock. Dr. Roeder became a shareholder of FDC on January 1, 1999. As a shareholder, he was entitled to vote on matters FDC’s Board of Directors submitted for consideration by the general membership.

In early 2000, FDC was negotiating with Cox over finance matters. At the same time, FDC was reviewing its internal compensation model. At a meeting of the general membership in April 2000, a majority of doctors voted to shift from compensation based on production to compensation based on collections. Dr. Roeder voted against the proposal to change the compensation model. The new model became effective in September 2000.

The next events relevant to the issues presented on appeal occurred in 2002. In prior years, FDC had provided professional liability insurance for its physician-employees through an “occurrence” type liability insurance policy. Early in 2002, FDC was notified by its insurer, Intermed, that it would no longer write an occurrence-based policy and would be converting over to selling only claims-made type policies of professional liability insurance. Coverage under the existing Intermed policy expired on July 5, 2002. FDC obtained three price quotations for other coverage: one for coverage through Cox’s self-insurance trust fund; one for claims-made coverage through Intermed; and one for an occurrence-based policy from Medical Protective. These three proposals were presented to FDC’s general membership at a meeting on May 28, 2002. The members voted to purchase insurance from Medical Protective.

On July 3, 2002, however, FDC was notified by Medical Protective that it was withdrawing certain discounts included in its original quotation. This raised the price of Medical Protective’s policy by $800,000 to $900,000. FDC obtained a 14-day extension on the existing Intermed policy and scheduled an emergency meeting of the general membership to discuss the professional liability insurance issue on July 16, 2002.

At the July 16th meeting, there were further presentations to the doctors about the proposals by Cox, Intermed and Medical Protective. Cox’s chief executive officer, Larry Wallis, was at the meeting. He told the doctors that, in order to be covered by Cox’s self-insurance plan, there would have to be a joint employment agreement that made them Cox’s employees “for insurance purposes only.” A majority of FDC’s physician-shareholders voted at this meeting to obtain professional liability insurance through Cox. Dr. Roeder was present at this meeting and, along with a small number of other doctors, voted against this proposal because he did not want to become an employee of Cox.

On July 20, 2002, FDC and Cox executed a document entitled “Joint Employment Agreement.” This agreement contained the following provisions pertinent to the issues presented in this appeal:

1)Term and Termination. This agreement shall begin on the date of its execution, and shall continue for an indefinite term. The agreement shall be terminable by either party upon ninety (90) days’ written notice to the other.
2) Joint Employment of Physicians. During the term of the Agreement, all physicians licensed as such by the ■ State of Missouri and employed by Clinic shall also be employees of [Cox] for the purposes stated herein.
3) Providing Professional Services, Special Employer. [Cox] shall be considered the Special Employer of said physicians and shall have control over the professional services of said physicians to the extent that such control does not interfere with the relationship of the physician to the patient, and to the extent that such control does not interfere with the independent physician’s exercise of medical judgment in the care of a patient.
4) Providing Professional Services, General Employer. Clinic shall continue as the General Employer of said physicians, and shall have control over said physicians, other than over the physicians’ professional sen-vices. Clinic shall be responsible for the payment of physician compensation and benefits, including health insurance and retirement.
5) Professional Liability Indemnification and Insurance. By reason of its status as the Special Employer of the said physicians, [Cox] agrees that it will defend any claim or lawsuit and pay damages assessed against (in the name and on behalf of) Ferrell-Duncan .Clinic, Inc., and its employed physicians, or their estates, based on professional services rendered or that should have been rendered, under the same terms and conditions as it provides indemnification and insurance to [Cox’s] other physician employees.

This agreement, which was drafted by Cox, was not in existence when the general membership voted on which one of the three insurance proposals to accept at the meeting on July 16, 2002. After the document was prepared and executed, it was kept by McCracken with FDC’s other corporate records. No copies of the agreement were distributed to the general membership.

In mid-2002, Dr. Roeder became concerned because his compensation had decreased under the new collection model, even though he handled as many cases and worked as many hours as in 2001. In November 2002, Dr. Roeder and three other FDC physicians (Dr. Grillot, Dr. Rogers and Dr. Talley) sought legal counsel and jointly hired attorney Mathew Placzek (“Placzek”) to represent them.

On November 26, 2002, Placzek sent a letter to McCracken requesting an opportunity to inspect FDC’s books and records. That same day, Placzek sent another letter to McCracken which stated, in pertinent part:

The third subject of this letter is the issue of whether my clients are employees of Cox Health or Ferrell-Duncan Clinic. They have heard a document exists labeling them employees of Cox Health for insurance purposes. Such a document might have a profound effect on their rights with respect to the contracts between them and the Clinic. It might also call into question the legality of their pension profit sharing arrangement, as it relates to other Ferrell-Duncan Clinic employees. Please consider this letter a formal request on behalf of my clients, that you provide me whatever documentation exists that labels them Cox Health employees for insurance purposes. If there is no such documentation, and my clients are proceeding under erroneous assumptions, I would appreciate receiving written confirmation of the same.

On December 4, 2002, McCracken sent Placzek a letter stating that the Joint Employment Agreement was available for inspection at McCracken’s office.

On December 17, 2002, Placzek and Dr. Rogers met McCracken in the FDC corporate boardroom and inspected FDC’s corporate minutes and the Joint Employment Agreement. This was the first time Dr. Rogers had ever seen the latter document. He and Placzek were permitted to look at the document, but they were not given a copy of it. After inspecting the Joint Employment Agreement, Placzek told McCracken that FDC had breached its contracts with Drs. Roeder, Rogers, Grillot and Talley by executing the agreement.

A few days later, Placzek prepared a proposed lawsuit against FDC to be filed if the parties did not reach a satisfactory settlement. The four plaintiffs in the suit were Drs. Rogers, Roeder, Grillot and Talley. Count II, paragraph 17, of this draft petition alleged that FDC “contractually chose to allow plaintiffs to become employees of Lester E. Cox Medical Center without plaintiffs knowledge or consent and therefore, assigned plaintiffs rights and obligations under said contract to a third party and said assignment constitutes a material breach of said contract.” This count further alleged that, due to FDC’s breach of its contracts with plaintiffs, the non-compete clauses in the contracts were unenforceable. This proposed lawsuit was hand-delivered to McCracken by the four doctors as a group. He asked them to wait seven to ten days before filing the case to see if they could negotiate a settlement and avoid litigation.

On January 22, 2003, Dr. Roeder gave FDC written notice that he was terminating his contract of employment 60 days later. On February 4, 2003, he filed his own, separate lawsuit against FDC. In Count II of the lawsuit, he alleged that the non-eompete clause in his contract with FDC was unenforceable for the reasons discussed above, and he sought a declaration from the court to that effect. In March 2003, FDC filed its answer and a counterclaim seeking damages for breach of contract and injunctive relief.

On April 1, 2003, the trial court granted a request for a temporary restraining order (“TRO”), which was effective for 15 days. On April 14, 2003, the court held a hearing on FDC’s request for a preliminary injunction. At the conclusion of the hearing, the TRO was extended for three days in order to give the parties time to submit briefs. On April 17, 2003, the trial court dissolved the TRO and denied FDC’s request for a preliminary injunction.

The trial was held on June 17, 2003. The parties stipulated that the only remaining issue was FDC’s request for a permanent injunction. On August 11, 2003, the trial court entered a final judgment containing extensive findings of fact and conclusions of law. The court found in favor of Dr. Roeder on Count II of his petition and against FDC on its counterclaim. This appeal followed.

III. Discussion

In FDC’s first point on appeal, it contends the trial court erred in finding that Dr. Roeder’s contract of employment could not be assigned without his contemporaneous consent because the contract contained the following provision: “This Contract shall be binding upon and inure to the benefit of the parties hereto, their successors, heirs, beneficiaries, assigns and personal representatives.” FDC claims the inclusion of the word “assigns” in this single provision in the.contract permitted it to assign to Cox Dr. Roeder’s obligation to perform professional medical services, without any further manifestation of assent to the assignment being required from him. Because the parties’ expressly intended that “[tjhis contract is drawn to be effective in, and shall be construed in accordance with, the laws of the State of Missouri^]” we reject FDC’s argument as inconsistent with Missouri public policy and long-standing precedent.

The contract between FDC and Dr. Roeder created an employment relationship between the parties and obligated Dr. Roeder to provide professional medical services for FDC’s sole and exclusive benefit during the term of the agreement. The provision of such services by Dr. Roe-der required special knowledge, skill and a relationship of personal confidence between employer and employee. Therefore, the employment contract constituted a personal services contract. See Sympson v. Rogers, 406 S.W.2d 26, 30 (Mo.1966). “It is well recognized that in a contract for personal services, which involves special knowledge, skill or a relation of personal confidence, the duty to perform is not assignable without the consent of both parties.” Kenneth D. Corwin, Ltd. v. Missouri Medical Service, 684 S.W.2d 598, 600 (Mo.App.1985); see also Sympson, 406 S.W.2d at 30; Property Exchange & Sales, Inc., (PESI) by Jacobs v. Bozarth, 778 S.W.2d 1, 3 n. 1 (Mo.App.1989). Requiring mutual consent to the assignment of a personal services contract promotes an important public policy of this state:

This contract ... clearly calls for personal services, and involves the relation of personal confidence. The law is well settled that a contract is not assignable without the consent of both parties where the personal acts and qualities of one of the parties form a material and ingredient part of the contract. In such a case, that is, where the character, ability, and credit of the party dealt with obviously is of so muck importance, one has a right to select and determine with whom one will contract, and cannot have another person thrust upon him without his consent.

Allied Pipe Line Corp. v. Studley, 191 S.W.2d 317, 320 (Mo.App.1946) (emphasis added). The attempted assignment of a personal services contract without the employee’s consent is improper, illegal and void. See Alldredge v. Twenty-Five Thirty-Two Broadway Corp., 509 S.W.2d 744, 749 (Mo.App.1974).

Here, Dr. Roeder was hired by FDC to provide professional services as a physician. The Joint Employment Agreement executed by FDC in July 2002 constituted the assignment of his personal services contract because it ceded control over Dr. Roeder’s professional services to a third party, Cox. It is undisputed that Dr. Roe-der did not consent to the assignment because, when FDC asked employees if they wanted to become employees of Cox for “insurance purposes,” he voted against the proposal. Therefore, FDC’s attempted assignment of Dr. Roeder’s employment contract to Cox without his contemporaneous consent was improper, illegal and void. See Alldredge, 509 S.W.2d at 749. “A party cannot be forced to accept of a contract not of his own choosing in the first instance, and his right of choice in this regard is not impaired by any substituted agreement to which he does not yield an intelligent subsequent assent.” D. C. Hardy Implement Co. v. South Bend Iron Works, 129 Mo. 222, 31 S.W. 599, 599-600 (1895).

Entirely ignoring this line of cases, FDC argues that the inclusion of the word “assigns” in paragraph 18 in Dr. Roeder’s contract of employment made it, ipso facto, assignable. According to FDC, the following cases support this proposition: Orthotic & Prosthetic Lab, Inc. v. Pott, 851 S.W.2d 633 (Mo.App.1993); Schnucks Twenty-Five, Inc. v. Bettendorf, 595 S.W.2d 279 (Mo.App.1979); and Alexander & Alexander, Inc. v. Koelz, 722 S.W.2d 311 (Mo.App.1986). We find all of these cases are distinguishable from the case at bar.

Schnucks dealt with the issue of whether “[a] vendor’s covenant not to engage in a similar business, which is found to be reasonable in duration, space and purpose, and which is assignable by its terms, may be enforced by one who purchases from the vendee.” Schnucks, 595 S.W.2d at 287. The appellate court noted that the prohibition against the assignment of a personal services contract does not apply to such a covenant because it is not deemed to be personal in nature; instead, it is simply incident to the sale of the property and business. Id. Since there is no public policy prohibiting the assignment of a covenant not to compete when it is incident to the sale of a business, the appellate court held that the contract contained the following language authorizing its assignment: “Parties bound. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Seller and the Purchaser.” Id. Schnucks has no application here because Missouri public policy does prohibit the assignment of a personal services contract ■without the mutual assent of both parties. That public policy would be essentially nullified if an employer could avoid its effect by purporting to make the contract binding on the parties’ “assigns” at a time when the employee had no knowledge any such assignment was contemplated and without giving the employee an opportunity to give or withhold consent at the time the proposed assignment is to take effect. We do not believe the public policy of this state can or should be subverted by so transparent an artifice as this.

Orthotic involved the same issue as Schnucks and is, therefore, distinguishable for the same reason. Relying on Schnucks,' the Orthotic court held that “where such a covenant is given in connection with the sale of business accounts, customer lists and goodwill which, as we have determined, are fully assignable to others, it may properly be viewed as incident to the property conveyed.” Orthotic, 851 S.W.2d at 643 (footnote omitted). The language in the contract, which was essentially the same as in Schnucks, was sufficient to authorize the assignment of the covenant not to compete. Id. In a footnote, the court noted that “Missouri courts have long recognized a distinction between covenants ancillary to a sale of a business and covenants merely ancillary to an employment contract, showing substantially greater liberality in enforcing the former.” Orthotic, 851 S.W.2d at 646 n. 4.

Once again, this case does not support FDC’s position here. The issue we address is not whether a covenant not to compete, incident to the sale of a business, is assignable if the contract permits it; instead, we decide whether a contractual obligation to perform personal services can be assigned absent the mutual and contemporaneous consent of both parties to the contract. We answer this latter question in the negative and hold that the assignment of a personal services contract, by either the employer or employee, is void and unenforceable unless the other party consents at the time the assignment occurs. See D.C. Hardy Implement Co., 31 S.W. at 599-600; Alldredge, 509 S.W.2d at 749.

Alexander is similarly inapposite. There, the question presented for decision was “whether the surviving company in a statutory merger can enforce covenants not to compete contained in contracts between the merged company and employees of that company.” Alexander, 722 S.W.2d at 312. The appellate court held that such covenants not to compete were enforceable because a merger does not constitute a prohibited assignment:

Employees assert the employment contract at issue in their case is one for personal services, which, as a general rule, cannot be assigned without the consent of the employee. However, a change in the form in which the employer does business such as the merger in this case, while involving a formal transfer from one entity to another, should not be seen as creating an assignment in violation of the rule against the assignment of personal service contracts. The merger here apparently had no affect on the business of employer, which was merely converted from a wholly-owned subsidiary of surviving corporation to an integral corporate part of surviving corporation. Just as the initial acquisition of one company by another by the purchase of stock would not work a change in the business, neither would the merger, a mere change in the form of ownership from indirect to direct, work such a change in the business. As no assignment could occur in the former, no prohibited “assignment” would occur in the latter.

Id. at 312-13 (citation omitted). The Joint Employment Agreement between FDC and Cox was not executed because of any merger between those organizations. Each retained its separate corporate existence after that document was signed. Furthermore, it is FDC, not Cox, who is attempting to enforce the covenant not to compete against Dr. Roeder. For all of these reasons, Alexander does not aid FDC.

Even if we were inclined to accept FDC’s interpretation of the cases upon which it relies, its argument would fail for a completely different reason. The contract of employment created a bilateral relationship of employer and employee between FDC and Dr. Roeder and obligated him to provide professional services as a physician for FDC’s sole and exclusive benefit. The Joint Employment Agreement purported to materially change this by: (1) converting the employment relationship into a trilateral relationship; (2) granting control over Dr. Roeder’s professional services as a physician to Cox; and (3) obligating Dr. Roeder to provide such professional services for the mutual benefit of FDC and Cox. Paragraph 18 of the employment contract specifically stated, in pertinent part, that “[n]o amendments or variations of the terms of this Contract shall be valid unless made in writing and signed by the Doctor and a duly authorized representative of the Corporation.” Absent written consent from Dr. Roeder, FDC had no right to unilaterally change the terms of his contract. See Smith-Scharff Paper Co., Inc. v. Blum, 813 S.W.2d 27, 29 (Mo.App.1991). FDC’s argument in point I ignores this provision in the contract it drafted.

In sum, the inclusion of the word “assigns” in the boilerplate language in paragraph 18, which FDC drafted, can be explained by the fact that the contract specifically reserved to FDC the right to assign its obligation to collect fees and compensation for the services rendered by Dr. Roeder. Even in a personal services contract like this one, the inclusion of such language is appropriate because “the right to receive money due or to become due under a contract, is not personal in nature, and as a general rule is assignable.” Kenneth D. Corwin, Ltd., 684 S.W.2d at 600. It would be an inappropriate construction of the contract, however, to go any further than this and conclude that the inclusion of the word “assigns” in this personal services contract makes it assignable without Dr. Roeder’s consent. Cf Jones v. Joy Manufacturing Co., 381 S.W.2d 860, 863 (Mo.1964) (holding that the inclusion of language making a personal services contract binding on the employee’s “heirs” was “inappropriate” because “a contract for the rendition by Mr. Jones of unique personal acts, which only he could render, could not be binding on his heirs so as to obligate them to perform these services”). If FDC’s argument were correct, each party to the contract would have an equal right to assign the duty to perform to a third party without obtaining consent to the assignment. Thus, Dr. Roeder would have the right to assign his duty to perform professional medical services to any other physician without FDC’s consent, and it would be obligated to accept such services regardless of the assignee physician’s level of skill, medical specialty, history of malpractice claims, age, experience or other factors that a sensible employer would consider before hiring a doctor. We decline to give the contract of employment such an absurd construction. See Rath-bun v. CATO Corp., 93 S.W.3d 771, 781 (Mo.App.2002) (the more probable and reasonable of two available constructions should be utilized to the exclusion of one which produces- an absurd, and therefore unreasonable, result). Point I is denied.

' In point II, FDC contends the trial court erred in concluding that the assignment of control over Dr. Roeder’s professional services to Cox constituted a material breach of the employment contract. FDC claims this conclusion is not supported by the evidence and is an erroneous application of the law for three reasons: (1) FDC had the right to assign Dr. Roe-der’s contract of employment without breaching'the agreement; (2) if there was a breach, it was not material to Dr. Roe-der’s performance under the contract; and (3) in any event,- Dr. Roeder waived any alleged breach by FDC. We consider these arguments seriatim.

Existence of Breach

FDC argues that it did not breach any provision of the employment contract by obtaining malpractice insurance through Cox. That is not an accurate statement of what FDC did. Unlike in prior years, FDC did not purchase' a typical policy of professional liability insurance from Cox in 2002. Instead, the Joint Employment Agreement executed by FDC purported to make Dr. Roeder an employee of a third party without his consent by assigning control over the performance of Dr. Roeder’s professional medical services to Cox. We reject as specious FDC’s argument that it was authorized to do this because the vast majority of FDC’s physician-shareholders voted to accept Cox’s proposal. Dr. Roeder had an individual contract of employment with FDC. The sole provision in the contract that could be changed by a vote of the membership was the compensation provision, which was done in 2000. The express inclusion of this one situation in which Dr. Roeder’s contract terms could be changed by a vote of the general membership implies that it is not permitted in any other instance. See Brackett v. Easton Boot & Shoe Co., 388 S.W.2d 842, 848 (Mo.1965); General American Life Ins. Co. v. Barrett, 847 S.W.2d 125, 133 (Mo.App.1993). Therefore, FDC could not change other terms and conditions of Dr. Roeder’s contract of employment simply because other employees voted in favor of such changes.

FDC also argues that it never promised or guaranteed in the contract that Dr. Roeder would not be jointly employed by another entity or have his contractual duty to perform assigned to someone else. What FDC fails to understand is that this limitation arises as a matter of law from the fact that Dr. Roeder was employed to provide specialized personal services. As a matter of Missouri public policy, his duty to perform such contractual services cannot be assigned to a third party without Dr. Roeder’s consent. See Sympson, 406 S.W.2d at 30; Kenneth D. Corwin, Ltd., 684 S.W.2d at 600; Allied Pipe Line Corp., 191 S.W.2d at 320. Therefore, the assignment of control over Dr. Roeder’s professional services to Cox without his consent was a breach of his contract of employment with FDC. See D.C. Hardy Implement Co., 31 S.W. at 599-600; Alldredge, 509 S.W.2d at 749.

Materiality of Breach

FDC next argues that, if it breached the contract, the breach was not material. “The question of whether an employer has materially breached an employment agreement is largely a question of fact for the circuit court.” Washington County Memorial Hosp. v. Sidebottom, 7 S.W.3d 542, 546 (Mo.App.1999); see Luketich v. Goedecke, Wood & Co., Inc., 835 S.W.2d 504, 507 (Mo.App.1992). The trial court concluded that FDC’s execution of the Joint Employment Agreement was material for two reasons: (1) the breach goes to the essence of the employer-employee relationship created by the contract in issue, and (2) to hold that the assignment is not a material breach would defeat the entire purpose of Missouri’s prohibition against assigning personal services contracts. We agree.

One of the fundamental purposes of this state’s public policy prohibiting the assignment of personal services contracts is to protect an employee’s right to choose the person or entity for whom such services will be performed. Except in those limited circumstances already discussed and distinguished, an employee cannot be forced, via an assignment of the contract, to provide personal services to a new employer unless the employee consents to do so. This right to choose, which is an inherent right granted to a person providing personal services pursuant to a contract, does involve a matter that goes to the very essence of the employment relationship. Therefore, we defer to the trial court’s determination of this factual issue. See Washington County Memorial Hosp., 7 S.W.3d at 546; Luketich, 835 S.W.2d at 507.

Waiver

FDC’s final argument is that Dr. Roeder waived FDC’s breach by remaining an employee and accepting substantial benefits of employment from July 2002 until March 2003. We disagree. The burden was on FDC to prove that Dr. Roeder waived FDC’s breach of the employment contract. See Forms Mfg., Inc. v. Edwards, 705 S.W.2d 67, 70 (Mo.App.1985). ‘Waiver is the intentional relinquishment of a known right. If waiver is implied from conduct, the conduct must clearly and unequivocally show a purpose to relinquish the right.” O’Connell v. School Dist. of Springfield R-12, 830 S.W.2d 410, 417 (Mo. banc 1992). Whether Dr. Roeder waived FDC’s breach of contract was an issue of fact for the trial court to decide. See Waldroup v. Dravenstott, 972 S.W.2d 364, 369-70 (Mo.App.1998). The trial court ruled this issue against FDC for the following reasons:

The uncontested facts indicate that (a) as soon as plaintiff [Dr. Roeder] learned of the existence of the Joint Employment Agreement, he used due diligence to obtain a copy of the same, and (b) within 17 days after his counsel looked at a copy of the Agreement, a draft of the lawsuit was prepared and hand delivered to Mr. McCracken. The lawsuit contained a specific allegation that Ferrell-Duncan breached the Employment Contract by making plaintiff an employee of Cox, and assigning plaintiffs rights and obligations under that Contract to Cox. (See Exhibit 61, at 17, Count II). Further, Mr. McCracken at this January meeting, asked that the filing of the lawsuit be delayed pending settlement negotiations. It was as soon as negotiations broke down that plaintiff promptly resigned, and the lawsuit was promptly filed. There was no waiver.

(Italics in original.) Each of these findings is supported by the evidence. Accordingly, we defer to the trial court’s determination of this factual question. See Kling v. Taylor-Morley, Inc., 929 S.W.2d 816, 820-21 (Mo.App.1996); Orchard Container Corp. v. Orchard, 601 S.W.2d 299, 304 (Mo.App.1980).

IV. Decision

Since FDC materially breached its contract of employment with Dr. Roeder by executing the Joint Employment Agreement — which occurred well before Dr. Roeder allegedly violated the covenant not to compete — FDC is not entitled to enforce the covenant against him. See Washington County Memorial Hosp., 7 S.W.3d at 546; Luketich, 835 S.W.2d at 507. “A party to a contract cannot claim its benefits where he is the first to violate it.” Smith-Scharff Paper Co., Inc., 813 S.W.2d at 28. Therefore, the trial court’s judgment is affirmed.

PARRISH, P.J., and BARNEY, J., concur.

      . All references to rules are to the Missouri Rules of Civil Procedure (2004).

      . Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      . There is a very significant difference between the coverage provided by an “occurrence” versus a "claims made” policy. An occurrence policy covers negligent acts or omissions that happen during the policy period, irrespective of when the acts or omissions are discovered or when a claim is actually made. Northern v. Physicians Defense Ass’n, 88 S.W.3d 130, 134 (Mo.App.2002). Under a “claims made” policy, coverage is effective when the negligent act or omission is discovered and reported to the insurer during the applicable period, regardless of when the act or omission occurred. Southeast Bakery Feeds, Inc. v. Ranger Ins. Co., 974 S.W.2d 635, 639 (Mo.App.1998). For this reason, there is no coverage for late claims under a "claims made” policy, even if the insurer suffered no prejudice by reason of the delay. See Insurance Placements, Inc. v. Utica Mut. Ins. Co., 917 S.W.2d 592, 597 (Mo.App.1996).

      . Dr. Roeder never saw this document until McCracken’s deposition in April, 2003.

      . This rule simply reflects a specific application of the general principle that an assignment which violates the public policy of this state is void and unenforceable. See, e.g., Marvins Midtown Chiropractic Clinic, L.L.C. v. State Farm Mat. Auto. Ins. Co., 142 S.W.3d 751, 754 (Mo.App.2004); Hays v. Missouri Highways and Transportation Comm'n, 62 S.W.3d 538, 540 (Mo.App.2001); Forsthove v. Hardware Dealers Mut. Fire Ins. Co., 416 S.W.2d 208, 221-22 (Mo.App.1967).


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    In re the MARRIAGE OF Donald EVANS and Teresa Marcella Evans a/k/a Teresa Hock. Donald Evans, Plaintiff-Respondent, v. Teresa Marcella Evans a/k/a Teresa Hock, Defendant-Appellant.
    No. 25964.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 24, 2004.
    Application for Transfer Denied Jan. 14, 2005.
    Application for Transfer Denied March 1, 2005.

      Canice Timothy Rice, Jr., St. Louis, for appellant.
    John M. Albright, Moore & Walsh, L.L.P., Poplar Bluff, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Donald Evans (“Father”) brought a suit, pursuant to section 454.520, to determine the amount of back child support owed to Teresa (Evans) Hock (“Mother”). The trial court determined the principal amount of support, interest, court costs, and expenses which Father owed to Mother. Mother brings this appeal initially claiming Father failed to state a claim because his claim was barred by collateral estoppel, res judicata or the prohibition against splitting a claim. Mother further contends in her second point that section 454.520.5 is not applicable to judgments obtained in Illinois but only available to judgments rendered in Missouri. In her third point, Mother contends the trial court erred in its calculation by not following the principal and interest determinations of the Illinois courts. We affirm.

Father and Mother submitted this case to the court on a stipulation of facts. We have set forth here only the documents and stipulations that were before the trial court in the Stipulation of Facts. The stipulated pleadings and facts contained the following:

Exhibit 1 was an authenticated copy of the July 14, 2000 Illinois judgment filed with the Circuit Court of Butler County, Missouri. That initial registration included a judgment of dissolution, a settlement agreement between Mother and Father for the payment of a worker’s compensation claim directly to Mother, and a nunc pro tunc order designating the original Order a “Judgment of Dissolution of Marriage.” Exhibit 1 also included an affidavit of attorney Canice Timothy Rice, Jr. together with a computer printout of the amount Mother claimed to be owed on the judgment of dissolution: $8,751.80 in principal and $12,100.20 in interest, for a total of $20,852.00.
Exhibit 2 contained Father’s Motion to Set Aside and Vacate the Foreign Judgment. The exhibit also contained Father’s Answer, which raised a statute of limitations defense and claimed that the amount owed had been improperly calculated pursuant to the laws of Missouri and the laws “wherein the judgment was entered.” Additionally, the exhibit included a computer calculation of the “correct” principal and interest amounts.
Exhibit 3 included copies of a second authenticated registration of a foreign judgment of December 7, 2000. In that document, Mother re-registered the Order of Dissolution, the Judgment of Dissolution, the Nunc Pro Tunc Order, and the Settlement Agreement filed April 17, 1991. Additionally, Mother registered orders dated April 13, 1981; April 17, 1991; and November 9, 1992. The April 13, 1981 order found Father in contempt for failing to pay $820.00 in child support and failing to maintain a minor child on a medical insurance policy. The April 17, 1991 order approved the settlement agreement regarding the payment of $21,000.00 to Mother from the earlier-mentioned worker’s compensation claim. The November 9, 1992 contempt judgment found Father in arrears for $15,551.45 in principal and $1936.78 in interest.
Exhibit 8 also showed that Mother registered a judgment filed in Illinois on November 22, 2000. The November 22, 2000 judgment revived the original judgment in Mother’s favor against Father for the $40.00 per week child support, as well as the court’s subsequent orders and judgments concerning the amount of arrears in child support. The order, as typed, revived the judgments “for the amount of $35,378.17.” This language containing the amount was crossed out, however, and no other calculation was included in the judgment. An amended affidavit of attorney Rice stated that the amount Father owed as of March 29, 1991, was $33,191.45, but after the $21,000.00 credit was given, Father owed only $12,191.45. The amended affidavit did not include a computer calculation indicating the amount due to Mother.
Exhibit 4 contained the judgment of the court registering the foreign judgment, which found that Mother met all the requirements for registering a foreign judgment under Rule 74.14 and “no pleadings which deal with a stay as provided in subsection (d) of the rule were filed.”
Exhibit 5 was a request and order for execution, garnishment or sequestration filed against Father on behalf of Mother.
Exhibit 6 was Father’s Motion to Quash the Writ of Sequestration or, in the Alternative, for a Declaration of the Interest Due, whereas Exhibit 7 was the February 2, 2002 court order overruling Father’s motion but providing no reason for the denial.
Exhibit 8 was the complete history of the accumulation of child support, but it does not include the accrual of any interest thereon or the payments made by Father prior to the registration of the foreign judgment in Butler County.
Exhibit 9 contained copies of six requests and orders for execution, garnishment or sequestration issued, while Exhibit 10 included the sheriffs receipts or checks for the amounts paid to Mother as a result of the returned garnishments.
Exhibit 11 was a copy of the final Request and Order for Execution, Garnishment or Sequestration and it showed a total of $5,458.33 collected from the attachments.
The parties agreed that Father opposed the recording of the judgment and, in the alternative, requested that the court determine the interest due on the Illinois judgment, but Mother challenged the determination of principal and interest, claiming that “a determination of interest was not provided for under Rule 74.14 and further suggested Father should attack a writ of garnishment or sequestration not the action recording the foreign judgment.” The stipulation further agreed to the amount of court costs and sheriffs fees in the registration of the foreign judgment and garnishment endeavors. The parties did not submit any other stipulations or exhibits to the trial court.

The court entered judgment in favor of Mother for $1,959.11 in principal, $9,147.00 in interest, and $298.85 in court costs and expenses. As noted earlier, Mother brings three points on appeal but only the third claims error regarding the calculation of the principal and interest. Mother’s first two points claim that the trial court should not have entered any judgment at all on Father’s motion.

Mother’s first point on appeal is a claim that the trial court should not have ruled on the merits of Father’s petition because his claim was barred by the doctrines of res judicata, collateral estoppel, or the prohibition against splitting a cause of action due to the prior litigation between Father and Mother. Mother claims that Father attempted to have the interest and principal calculated on two different occasions: first, when Mother registered the foreign judgment and, second, when she-filed a request for a writ of sequestration. The refusal of the trial court to calculate the principal and interest on both of those occasions form the basis of Mother’s argument that the matter has been previously litigated.

When Mother originally attempted to register the nunc pro tunc order, judgment and settlement agreement, Father raised a statute of limitations defense. While the matter was pending in Butler County, Missouri, in 2000, Mother sought to revive the previous judgments in Illinois. The Illinois court revived the judgments but intentionally refused to declare the amount of principal and interest due on the previous judgments. Mother then registered the subsequent Illinois order which renewed all of the previous judgments. Father challenged the recording of the foreign judgment and requested that the trial court determine the principal and interest due; however, Mother contested the court’s ability to calculate principal and interest during a Rule 74.14 action. The Missouri court found no authority for deciding the issues raised in Father’s pleadings in a registration of a foreign judgment action and declined to calculate the interest or principal in that action. Mother contends this first denial of the trial court to ascertain the correct amount of principal and interest bars further litigation under section 454.520.

Likewise, Mother argues the second attempt by Father to have the principal and interest calculated by the court bars the current action. Mother caused the trial court to issue an order for execution that was challenged by Father; however, the trial court declined to quash the order. Sufficient funds had been collected to satisfy the judgment if no interest had accrued. In Father’s motion to quash the writ of sequestration, he again raised the issue of determining the correct amount of principal and interest, but Mother opposed having the trial court determine the principal and interest in the execution proceeding. The request to quash the writ of sequestration was summarily denied by the trial court with no explanation. Mother now maintains that Father should have appealed the trial court’s denial of his request to determine the principal and interest amounts to preserve his ability to file a motion pursuant to section 454.520 and, because he did not appeal it, Father is barred from seeking a determination of the principal and interest owed on his child support obligation.

Father disagrees that he has split his cause of action in either of his first two efforts to have principal and interest calculated; he argues his suit did not alter the positions of the parties or change any previous judgment but rather involved different facts because the principal and interest owed constantly changes. He further notes that neither a Missouri nor Illinois court has calculated the amounts of the current principal and interest and, because principal and interest fluctuate monthly, debtors are always entitled to a determination of how any payments are credited against a judgment. He notes the only finding by the trial court in the registration action amounted to a determination that section 454.520 was not an appropriate defense to the proper registration of a foreign judgment and the court did not make any findings in the judgment on the sequestration proceedings regarding his efforts to have the principal and interest calculated.

Again, Father and Mother submitted the case on a stipulation of facts. Those facts included details of the Illinois and prior Butler County proceedings, a complete history of the accrual of child support, a computer printout from Father’s and Mother’s attorneys detailing the amounts owed, the amount of Father’s voluntary and involuntary payments, and details of court costs. Because the trial court entered judgment based on a stipulation of facts, we only determine whether the trial court drew the proper legal conclusions from the stipulated facts. Duckett Creek Sewer Dist. v. Golden Triangle Dev. Corp., 32 S.W.3d 178, 181 (Mo.App. E.D.2000). Absent an erroneous declaration or application of the law, we will affirm the trial court’s decision. Id.; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Both Father and Mother cite to Deatherage v. Clegborn, 115 S.W.3d 447 (Mo.App. S.D.2003), for a discussion of res judicata, collateral estoppel, and claim splitting. The doctrine of res judicata, or claim preclusion, operates as a bar to the reassertion of a cause of action that has been previously adjudicated between the same litigants or those in privity with them. Id. at 454.

The doctrine of res judicata bars a claim if the following elements are satisfied: (1) an identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons or parties to the action; and (4) identity of the quality or status of the person for or against whom the claim is made.

Id.

Res judicata and the rule against splitting a cause of action are ‘“closely related because both are designed to prevent a multiplicity of lawsuits.’ ” Id. (quoting Burke v. Doerflinger, 663 S.W.2d 405, 407 (Mo.App. E.D.1983)).

In general, the test for determining whether a cause of action is single and cannot be split is: 1) whether separate actions brought arise out of the same act, contract or transaction; 2) or whether the parties, subject matter and evidence necessary to sustain the claim are the same in both actions.

Id. at 455.

The doctrine of collateral estop-pel, or issue preclusion, on the other hand, precludes the parties or those in privity “from relitigating issues that were necessarily and unambiguously decided in a previous judgment.” Id. at 454.

The elements of collateral estoppel are: (1) the issue decided in the prior adjudications mirrors that in the present action; (2) the prior adjudication resulted in a final decision on the merits; (3) the party against whom collateral estoppel may apply participated as a party or in privity with a party to the prior adjudication; and (4) the party against whom the doctrine may apply has had a full and fair opportunity to litigate the issue.

Id.

Clearly, Mother’s argument concerning the collateral effect of the previous court overruling Father’s first attempt to have the court determine the principal and interest due to Mother in the registration of the foreign judgment action has no merit. As the trial court hearing the 454.520 action explained, Rule 74.14 merely provides a vehicle to register a foreign judgment and affords only a limited number of defenses for challenging the registration of the judgment. There are only a few recognized exceptions to the requirement that Missouri is obligated to give full faith and credit to a judgment of a sister state; those exceptions are that the judgment is void for lack of jurisdiction over the person or over the subject matter, a failure to give notice to the judgment debtor occurred, or the judgment was obtained by fraud. Sentinel Acceptance, Ltd., L.P. v. Hodson Auto Sales & Leasing, Inc., 45 S.W.3d 464, 467 (Mo.App. W.D.2001); Doctor’s Assoc. Inc. v. Duree, 30 S.W.3d 884, 887 (Mo.App. E.D.2000). Father made no allegation concerning the lack of in personam jurisdiction, lack of subject matter jurisdiction, or lack of notice to himself. Further, he made no allegation in his motion that the Illinois judgments were procured by fraud. Had Father made one of these allegations, and had the trial court ruled on it, then that issue likely would have been precluded from further litigation.

Because Father’s motion challenging the registration of the foreign judgment was not contending any of the calculations in any of the Illinois judgments were procured by fraud or asserting either of the other two defenses to the full faith and credit mandate, the trial court could properly have determined that the procedure for registration of the judgment was an inappropriate avenue to determine the amount of principal and interest due on the judgment from the date of the judgment until it was registered in Missouri. Therefore, the registration of a foreign judgment and a claim under section 454.520 are not one cause of action; in other words, Father did not split his cause of action by failing to appeal the first denial of his motion to vacate and set aside the registration of the foreign judgment.

While at first blush, it appears that Mother has a valid argument concerning the second attempt by Father to have the principal and interest determined in the motion to quash the writ of sequestration because he requested an allocation of principal and interest as an alternative in his motion to quash, we do not believe that any judgment was entered on the merits of the cause of action. The request for the writ of sequestration was simply an aid to the execution of a judgment. Rule 90.16(a). Father did not contend in his motion to quash the sequestration that the writ should be quashed because all amounts due and owing had been paid nor did he raise any other legal defense to the writ. See, e.g., MLJ Investments, Inc. v. Reid, 877 S.W.2d 221 (Mo.App. E.D.1994) (finding that lack of final judgment prohibits order for execution, garnishment or sequestration); State ex rel. Nixon v. Sweeney, 936 S.W.2d 239, 242 (Mo.App. S.D.1996) (court must have jurisdiction over the res to support valid execution). Again, we find no error in the trial court’s decision declining to determine the principal and interest in a summary writ of sequestration proceeding. Clearly then, Father’s request for a determination of principal and interest, as provided for in section 454.520.5, is a new proceeding with new facts and different law. The trial court was not barred by res judicata, collateral estoppel, or the prohibition against splitting a cause of action and had jurisdiction to decide the issues Father raised in his petition. Point I is denied.

Mother’s second point contends that the court erred by allowing Father to proceed under section 454.520.5 because this provision, which allows the court to determine the amount of interest payments, only applies to judgments that are initially rendered in Missouri. Mother contends that the calculation of principal and interest violates Rule 74.14(b) regarding the defenses to the registration of the judgment. The thrust of Mother’s argument is that all of the Illinois judgments were properly registered under Rule 74.14(b), and section 454.520 is not appropriately classified under Rule 74.14(b) as a procedure or defense for reopening, vacating, or staying a judgment of a circuit court of this state; therefore, section 454.520 cannot be used in any respect regarding the Illinois judgment. In other words, apparently, Father has no remedy to calculate the correct amount of principal and interest pursuant to section 454.520 because the initial judgment was entered in Illinois. Mother does not cite any Missouri cases for her proposition but, instead, relies upon the plain and ordinary language in sections 454.520.1, 454.520.2, and 454.520.3, all of which have language regarding judgments or orders of courts of “this state.”

Mother, however, disregards the plain language of Rule 74.14(b). Rule 74.14(b) provides that a judgment registered in this state may be enforced or satisfied in the same manner as a judgment of this state. Mother registered the prior Illinois judgments with the intention of enforcing those judgments pursuant to Missouri law. She followed Missouri remedies law to file aids in execution of her Illinois judgments. She is a creditor in the state of Missouri seeking enforcement of a foreign judgment that has been properly registered in this state. As such, the properly registered Illinois judgment is entitled to be given full faith and credit as any Missouri judgment. We find that section 454.520.5 applies to foreign judgments that are properly registered in the state of Missouri. Point II is denied.

In Point III, Mother contends that the trial court incorrectly calculated the amount of principal and interest due because the trial court should have started with the Illinois order of November 9, 1992, which set forth the arrearage as of that date, added principal and interest as determined by the Illinois court, subtracted any payments, and calculated additional interest. Our problem rests not with the basic contention that this court must enforce a valid Illinois judgment, if, in fact, it was the only registered judgment of the Illinois court and if the trial court did not follow that judgment. Our problem concerns Mother’s failure to develop her argument in a way that assists her. She appropriately sets forth her contention, the standard of review, and cases concerning full faith and credit for foreign judgments. She cites a case for the general proposition that foreign judgments liquidating and reducing child support arrearages to a sum certain cannot be collaterally challenged upon a registration in this state. We have no quarrel with that principle; our problem is with Mother’s application of that principle to the facts of this case.

Mother’s sole argument is:

If one begins with the November 9,1992 order determining the amounts of the principal and interest arrearages, and simply updates those figures by crediting any payments or other collections, by adding additional weekly child support obligations, and by calculating additional interest, the result would be that, as of April 28, 2003, Father owed Mother $19,511.45 [in] principal and $20,031.15 in interest.

She then supplies this Court with a “calculation employing this approach” in her appendix to her Brief. Her calculation is apparently based on figures included in a document in the appendix indicating a starting amount, per the November 9,1992 order, and a 9% interest rate. The problem is that she did not supply the trial court in the stipulated facts with this particular computer printout. Although the amended affidavit of Mother’s attorney included in Exhibit 3 states that, per the November 9, 1992 order, Father owed $15,551.45 in principal and $1,936.78 in interest, Mother never presented the trial court with a calculation showing the total amount owed as April 28, 2003. The only principal and interest calculation Mother supplied to the trial court was attached to her very first registration of the foreign judgment.

Father notes that Mother filed several foreign judgments that were irreconcilable and inconsistent regarding the amounts of the judgment at any given time and then requested the Missouri trial court to reconcile the outstanding judgments. We agree. From the documents submitted to the court, we can ascertain that Father and Mother were married in 1975, their only child was born in 1976, and the marriage was dissolved in Illinois on October 3,1980, by a handwritten order. The child was emancipated in 1994. Father was ordered to pay Mother $40.00 per week in child support by a memorandum order on October 3, 1980; the order was converted nunc pro tunc into a judgment on April 2, 1986. The settlement between Mother and Father indicates, after a deduction for the payment from the workers’ compensation settlement, Mother was still owed $12,191.45 as of March 29, 1991. There is no breakdown of principal and interest in the settlement agreement.

Of significance to this Court is the November 22, 2000 Illinois judgment reviving the previous Illinois orders and judgments. The Illinois court deliberately deleted the language, “for the amount of $35,378.17,” which Mother claimed to be the amount of arrearage from the Illinois orders. The court order stated that Mother could recover “the total sum of money, and annual interest of 9[%] from the date of judgment and also petitioner’s costs in this action.” No amount of principal or interest was calculated by the Illinois court.

In working through the maze of documents, we find that the trial court, upon invitation of Father and Mother, performed a Herculean task of reconciling the previous judgments and arriving at an amount for principal and interest. Clearly, the parties invited the trial court to apply the relevant law to determine the correct amount of principal and interest. Mother has shown no error in the trial court’s application of the law to these facts. Point III is denied.

The judgment is affirmed.

GARRISON, P.J., and PREWITT, J., concur.

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

      . Mother submitted additional computer printouts of principal and interest schedules in the appendix to her briefs. These printouts were not identical to those submitted to and reviewed by the trial court in the Stipulation of Facts. Appellate review of the judgment of the trial court is limited to evidence that was properly before the trial court. McDonald v. Thompson, 35 S.W.3d 906, 909 (Mo.App. S.D. 2001). Documents not presented to or considered by the trial court cannot be used for supplementation of the record on appeal. Aufenkamp v. Grabill, 112 S.W.3d 455, 458 n. 3 (Mo.App. W.D.2003).

      . Mother also filed a somewhat illegible document which appears to be the handwritten order granting the dissolution. There are no contentions in this case relevant to that particular order.

      . We are somewhat perplexed by Mother’s contention that the trial court had no jurisdiction to decide the issues raised in Father’s motion because Mother and Father stipulated to the facts of this case in order to get a ruling from the trial court on Father’s suit. We have not received any documents indicating that Mother requested the trial court to determine whether Father’s claims were barred by previous litigation. We note, however, that Mother's Answer to the initial pleadings does raise the issue of "improperly splitting a cause of action” and collateral estoppel. Father does not contend that Mother’s defenses were not before the trial court; therefore, we will proceed to determine whether the filing of the previous motions requesting the trial court to determine the principal and interest due on back due support bars Father from the present action.

      . Rule 74.14 states in pertinent part:
      (b) Filing and Status of Foreign Judgments. A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state may be filed in the office of the clerk of any circuit court of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a circuit court of this state and may be enforced or satisfied in like manner.

      (d) Stay.
      (,1) If the judgment-debtor shows the circuit court that an appeal from the foreign judgment is pending or will be taken or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was entered.
      (2) If the judgment debtor shows the circuit court any ground upon which enforcement of a judgment of any circuit court of this state would be stayed, the court shall stay enforcement of the foreign judgment for any appropriate period upon requiring the same security for satisfaction of the judgment that is required in this state.
      All rule references are to Supreme Court Rules (2004), unless otherwise stated.

      . Section 454.520.5 does not include the language, "this state," in it. That alone may indicate a legislative decision to not limit the cause of action only to judgments first rendered in this state.


text:
    Barry JOHNSON and Sue Johnson, Plaintiffs-Appellants, v. JADICO, INC., and Jack Dickerson, Randy Dickerson, Robert Dickerson, and Terry Dickerson, Individuals and General Partners d/b/a Dickerson Building Partnership, Defendants-Respondents.
    No. 26337.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 15, 2005.

      John E. Turner, Christopher P. Sweeny, Kansas City, Rick Koenig, Sedalia, for appellants.
    Larry James Tyrl, Kansas City, for respondents.
   NANCY STEFFEN RAHMEYER, Judge.

Barry Johnson (“Johnson”), an employee of BBI Bachtel Builders, Inc. (“BBI”), was injured when he fell through a skylight in a building owned by Jack Dickerson, Randy Dickerson, Robert Dickerson and Terry Dickerson, Individuals and General Partners d/b/a Dickerson Building Partnership (collectively, “Dickerson”), but leased by Jadico, Inc. (“Jadico”). Jack Dickerson is listed as the General Partner for the landlord in the lease; either Randy Dickerson or Robert Dickerson appears to be listed as the president of Jadico, Inc., on the lease. The written lease provided that Jadico was to “use and occupy the Premises for the purposes of manufacturing, and general office use in connection with the conduct of its business and for no other purposes.” The lease granted Jadi-co the right to “peaceably and quietly have, hold and enjoy the Premises during the Lease term without any manner of hindrance or molestation from Landlord or anyone claiming under Landlord.” The lease prohibited Jadico from assigning the lease or “any part of the Premises without the prior written consent of Landlord.” Dickerson retained the right to enter the premises to “make such alterations or repairs therein as may be necessary for the safety or preservation thereof,” to consent to all alterations to the property, and to make any “alterations ... reasonably requested by Tenant and agreed to by Landlord.”

Johnson and his wife (collectively, “the Johnsons”) brought a suit based on a premises liability claim for Johnson’s injuries. Jadico and Dickerson (collectively, “Defendants”) filed a joint motion for summary judgment in which they conceded, for the purposes of the summary judgment motion, every element of the Johnsons’ claim for Johnson’s injuries under a premises liability theory, except each claimed it had relinquished possession and control of its premises to BBI for the construction project and, therefore, neither was liable. The trial court granted the motion for summary judgment on that basis and the Johnsons appeal. We reverse and remand.

BBI was hired by Dickerson to construct a building on a lot adjacent to the building leased by Jadico. Johnson was injured on the roof of the building leased by Jadico when he fell through a skylight, which he maintains was unguarded and looked almost identical to the rest of the roof. He claimed he did not know of the existence of the skylights, nor did he know that the discolored roof panels were not capable of supporting his weight. Johnson was on the roof of the Jadico building, which Defendants claim was serving as a staging area, for the purpose of unloading materials for the construction of the new building. According to the affidavit of Jack Dickerson, the new building was to be “connected” to the existing Jadico building. There is no other information in the record concerning the connection between the Jadico building and the new building.

The Johnsons claim error in the grant of summary judgment as to both Jadico and Dickerson for the reason that there is a factual dispute as to whether either relinquished possession and control of the premises or, in the alternative, even if Defendants did relinquish control, if, as landowners, they failed to disclose a known dangerous condition that they had reason to believe would not be discovered. We find the first issue dispositive and, therefore, we do not address whether the landowners failed to disclose a known dangerous condition. We find there is an issue of fact as to whether Dickerson or Jadico relinquished possession and control of the premises to BBI.

Because Jadico and Dickerson were granted summary judgment, we review that grant de novo. ITT Commercial Finance Corp., v. Mid-America Marine Supply, Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The Johnsons, as the non-moving parties, are given the benefit of all reasonable inferences and the record must be viewed in the light most favorable to them. Id. at 382. Summary judgments are an extreme and drastic remedy and great care must be used when considering them. Hammonds v. Jewish Hospital of St. Louis, 899 S.W.2d 527, 529 (Mo.App. E.D.1995). Additionally, only evidence which would be admissible at trial can be considered in support of a motion for summary judgment. American Family Mutual Ins. Co., v. Lacy, 825 S.W.2d 306, 311 (Mo.App. W.D.1991).

Initially, we note that Dickerson and Jadico filed a joint response in this appeal and they address both of the Johnsons’ points in one response. The Defendants argue that they relinquished control of both the job site and contractor’s activities and are, therefore, not hable. To support that contention, Defendants use the affidavit of Jack Dickerson. In his affidavit, Jack Dickerson states that he is “also an owner and officer in the company known as Jadico, Inc.,” but it is not clear how Jack Dickerson’s statement affects Jadi-co’s legal liability in that a different person signed the lease as President of Jadico. Defendants ignore the separate corporate status of Jadico and fail to acknowledge the significance of the legal relationship between Dickerson and Jadico, which stems from the lease between Dickerson and Jadico. Jack Dickerson did not allege that Jadico had any contract or business relationship with BBI, nor that BBI did any work to the Jadico existing building. In fact, BBI employees were told not to go into the Jadico warehouse. The legal rights and responsibilities of Dickerson and Jadico are not identical.

Nonetheless, because Defendants support both claims with one affidavit, we shall determine whether that affidavit, as a matter of law, sufficed to support the grant of summary judgment. We look to the summary judgment motion, with the supporting affidavits and pleadings, and the opposing pleading to determine the uncontroverted facts regarding the issue of whether BBI was in possession and control of the premises at the time of the injury. Jack Dickerson’s affidavit states, in pertinent part:

10. On July 18, 2000, BBI Bachtel Builders, Inc. and its employees, were in possession and control of the roof of the existing building which they were using as a staging area for construction activities.
11. The roof of the existing building BBI Bachtel Builders, Inc. was in possession and control of on July 18, 2000, included the skylight through which Barry Johnson fell.

(emphasis added).

The Johnsons denied both allegations, relying upon the affidavit of Johnson that BBI never took possession and control of the existing building and Jack Dickerson’s deposition testimony in which he admits to having no personal knowledge of what the roof was being used for because he was in the office at the time the accident happened. Johnson also proposed as an un-controverted fact that BBI never took possession and control of the Jadico building. In support of his position, Johnson relied upon his own affidavit stating BBI did not take possession and control of the building. Defendants claimed Johnson’s affidavit was insufficient because it was a “legal conclusion.” We agree. We find that neither affidavit supports a finding regarding the possession and control of the premises.

The affidavit of Jack Dickerson and the Defendants’ theory are prefaced on a claim that the roof of the Jadico building was in the possession and control of BBI. In fact, in Defendants’ reply arguments in support of their Motion for Summary Judgment to the trial court, Defendants stated,

There is no dispute and defendants have never contended that the entire warehouse owned by Dickerson and occupied by Jadico was in the possession and control of plaintiffs employer. Throughout the construction, Jadico continued to occupy and engage in its business activities within the interior of the warehouse building owned by Dickerson. However, there is no evidence and the record is devoid of any suggestion that Jadico or Dickerson performed any of their customary business activities on the roof of the warehouse.

Defendants’ argument misses the mark. The law concerning landowner liability is that the duty of due care shifts to the independent contractor during the period of construction if the landowner relinquishes possession and control of the premises to the independent contractor, not the specific instrumentality. See Wilson v. River Market Venture, I, L.P., 996 S.W.2d 687, 695 (Mo.App. W.D.1999) (it was error to instruct as to the possession and control of the specific instrumentality instead of possession and control of the premises, although jury not misled or confused by the submission). Neither Dickerson nor Jadico can escape liability based on the proposition that both of them may have released the possession and control of the roof to BBI.

There is an additional problem with Dickerson and Jadico claiming that each released the possession and control of the premises; because of the lease, one of them did not have the right to possession and control of the premises and thus could not have released it. The injury did not occur on the property that may have been released by the construction contract; the injury occurred on the property that Jadi-co leased from Dickerson. The lease provided that Jadico had the right to “peaceably and quietly have, hold, and enjoy the Premises ... without any manner of hindrance or molestation from [Dickerson] or anyone claiming under [Dickerson]”; however, Dickerson retained the right to enter the premises “to make such alterations or repairs ... as may be necessary” for safety. Dickerson also retained the right to consent to all alterations to the property, which would then become the property of Dickerson, and agreed to make any “alterations ... reasonably requested by [Jadi-co].” There well may be an issue at the time of trial as to which entity had the right to relinquish the possession and control to BBI.

Defendants’ claim, which equates the possible relinquishment of the possession and control of the roof by Defendants on the day of the injury to relinquishment of possession and control of the premises, does not support a grant of summary judgment. The judgment is, therefore, reversed and the cause is remanded for further proceedings consistent with this opinion.

GARRISON, P.J., and PREWITT, J., concur.

      . See Love v. Ben Hicks Chevrolet, Inc., 655 S.W.2d 574, 576 (Mo.App. W.D.1983) ("[Pier-sons who choose to incorporate may not evade the consequences of doing so merely to suit their individual convenience. The gamut of legal consequences which would flow from permitting stockholders to draw and close the corporate veil at their own whim and caprice literally defies even the most fertile imagination.”) (citations omitted).