author: ROBERT S. BARNEY, Judge.

text:
    Roy L. SMITH, Appellant, v. DONCO CONSTRUCTION, Respondent, and Ohio Casualty Insurance Company, Respondent.
    No. 26903.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 23, 2006.

      William W. Francis, Jr., and Ryan E. Murphy, Placzek & Francis, Springfield, for appellant.
    Patrick J. Platter and Jeffrey C. Goodnight, Neal & Newman, L.L.P., Springfield, for Respondent.
   ROBERT S. BARNEY, Judge.

Appellant Roy L. Smith (“Claimant”) appeals from a final award denying compensation entered by the Labor and Industrial Commission (“the Commission”), arising from a claim for compensation made by Claimant against Respondent Donco Construction (“Employer”) for a purported injury suffered at Employer’s job site.

In denying relief to Claimant, the Commission affirmed the decision of the Associate Administrative Law Judge (“the ALJ”), which had determined that at the time of the purported injury Claimant suffered from a pre-existing and “ordinary disease of life in the nature of discitis and related intervertebral osteomyelitis.” The ALJ found that the foregoing “conditions are extremely rare and there is no evidence to support the conclusion that [these conditions] would have resulted from [Claimant’s] work with a drill hammer and concrete on August 12, 1999.”

Claimant now raises one point in his appeal. He maintains:

[t]he Commission erred in denying [his] claim for compensation, because the denial is based on an erroneous finding that his disability resulted from a preexisting condition of dis[c]itis and vertebral osteomyelitis, in that the law only permits such a denial when there is evidence of a pre-existing disability which was absent in the facts and evidence.

Stated another way, Claimant argues that “the evidence is uncontradicted that the condition of [his] lower back was asymptomatic prior to his job-related injury and in no way impeded him from working.” He asserts that his “pushing, pulling and straining” while squatting in a horizontal position and pulling a heavy cement drill triggered the symptoms of “a previously asymptomatic infection in his back” and that this particular activity caused him to suffer severe back pain. He also relates that “[b]efore the specific onset of this injury on August 12, 1999, [he] had only experienced mild back problems many years before for which he was able to receive complete relief from a chiropractor.” Accordingly, he asserts his symptoms were either caused or accelerated as a direct result of his employment with Employer. Therefore, Claimant maintains it was error to deny him compensation for his work-related medical expenses and permanent partial disability claim.

In support of his assertions, Claimant cites to Rana v. Landstar TLC, for the proposition that a claimant “can show entitlement to [permanent partial disability] benefits, without any reduction for [a] preexisting condition, by showing that it was non-disabling and that the ‘injury caused the condition to escalate to the level of a disability.’ ” Rana v. Landstar TLC, 46 S.W.3d 614, 629 (Mo.App.2001), overruled in part by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 225 (Mo. banc 2003) (quoting Miller v. Wefelmeyer, 890 S.W.2d 372, 376 (Mo.App.1994), overruled in part by Hampton, 121 S.W.3d at 228); see also Lawton v. Trans World Airlines, Inc., 885 S.W.2d 768, 771 (Mo.App.1994), overruled in part by Hampton, 121 S.W.3d at 228; Indelicato v. Mo. Baptist Hosp., 690 S.W.2d 183, 186-87 (Mo.App.1985), overruled in part by Hampton, 121 S.W.3d at 231.

Claimant presented the testimony of Dr. Andrew Myers (“Dr. Myers”), who diagnosed Claimant as suffering from an annular tear in the discs at “L4-L5 and L5-Sl.” Dr. Myers opined that the “injury which [Claimant] sustained on August 12, 1999, precipitated the back pain which led to his disability.” Dr. Myers then rated Claimant at “10 to 15 percent permanent partial disability of the body as a whole ...” attributable only to the on-the-job injury, exclusive of the discitis and associated osteomyelitis.

Respondents assert, on the other hand, that the Commission properly denied compensation. They maintain Claimant had an ordinary disease of life as defined in section 287.067(1), and as underscored by the fact that there was substantial and competent evidence before the Commission that Claimant had the disease of “discitis and vertebral osteo-myelitis” which is not a work-related condition. In support they tender the testimony of their expert medical witness, Dr. Wolfe Gerecht (“Dr. Gerecht”). Further, Respondents maintain that a disease of life is not compensable as an injury following an accident, section 287.020.3(2)(d), nor is an occupational disease compensa-ble if it is derived from an ordinary disease of life. See § 287.067.1.

“A court must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Hampton, 121 S.W.3d at 222-23.

‘We may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: (1) that the Commission acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the facts found by the Commission do not support the award; and (4) that there was not sufficient competent evidence in the record to warrant the making of the award.’

Russell v. Invensys Cooking & Refrigeration, 174 S.W.3d 15, 22 (Mo.App.2005) (quoting Shelton v. Mo. Baptist Med. Ctr., 42 S.W.3d 700, 701 (Mo.App.2001)); see § 287.495.1.

“ ‘The Commission reviews the record, and where appropriate, it will also determine the credibility of witnesses and weight of their testimony, resolve any conflicts in the evidence, and reach its conclusions on factual issues independent of the ALJ.’” Id. (quoting Shaw v. Scott, 49 S.W.3d 720, 728 (Mo.App.2001)). “The ‘Commission’s interpretation and application of the law are not binding on this Court and fall within our realm of independent review and correction.’ ” Id. (quoting Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 263 (Mo.App.2004)).

“ ‘The acceptance or rejection of medical evidence is for the Commission.’ ” Id. at 23 (quoting Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo.App.2001), overruled in part by Hampton, 121 S.W.3d at 225). “ ‘The fact finder may reject all or part of an expert’s testimony.’ ” Id. (quoting Bennett v. Columbia Health Care, 134 S.W.3d 84, 92 (Mo.App.2004)). “We will uphold the Commission’s ‘decision to accept one of two conflicting medical opinions’ if such a finding is supported by competent and substantial evidence.” Russell, 174 S.W.3d at 23 (quoting Birdsong v. Waste Mgmt., 147 S.W.3d 132, 137 (Mo.App.2004)). “When witnesses are deposed and do not testify live before the ALJ, the Commission is just as able as the ALJ to determine credibility from the written record.” Birdsong, 147 S.W.3d at 137-38. “We will not overturn the Commission’s determination regarding conflicting medical opinions, unless it is against the overwhelming weight of the evidence.’ ” Russell, 174 S.W.3d at 23 (quoting Bennett, 134 S.W.3d at 92).

Section 287.020.2 provides that “[a]n injury is compensable if it is clearly work related” and “[a]n injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability.” “Claimant has the burden of showing that [an] accident arose out of and in the course of employment.” Simmons v. Bob Mears Wholesale Florist, 167 S.W.3d 222, 225 (Mo.App.2005). “ ‘Arising out of and ‘in the course of employment are two separate tests, and both must be met before an employee is entitled to compensation.” Id. (quoting Abel v. Mike Russell’s Std. Serv., 924 S.W.2d 502, 503 (Mo. banc 1996)).

“To meet the test of an injury ‘arising out of the employment, the injury must be a natural and reasonable incident of the employment, and there must be a causal connection between the nature of the duties or conditions under which employee is required to perform and the resulting injury.” Id. “ ‘In the course of employment’ refers to the time, place and circumstance of an employee’s injury.” Simmons, 167 S.W.3d at 225.

An injury is not compensable merely “because work was a triggering or precipitating factor.” § 287.020.2; see also Wagner-Jones v. Harbert Yeargin Constr. Co., 145 S.W.3d 511, 517 (Mo.App.2004). “However, a work related accident can be both a triggering event and a substantial factor.” Cahall v. Cahall, 963 S.W.2d 368, 372 (Mo.App.1998), overruled in part by Hampton, 121 S.W.3d at 226.

Workers’ compensation awards for [permanent partial disability] are authorized pursuant to [section] 287.190. ‘The reason for an award of permanent partial disability benefits is to compensate an injured party for lost earnings.’ [Permanent partial disability] is defined in [section] 287.190.6 as being permanent in nature and partial in degree. ‘[A]n actual loss of earnings is not an essential element of a claim for permanent partial disability.’ [Permanent partial disability] can be awarded notwithstanding the fact the claimant returns to work, if the claimant’s injury impairs his efficiency in the ordinary pursuits of life. [The Commission] ‘has discretion as to the amount of the award and how it is to be calculated.’ ‘It is the duty of the Commission to weigh that evidence as well as all the other testimony and reach its own conclusion as to the percentage of the disability suffered.’

Rana, 46 S.W.3d at 626 (internal citations omitted).

“[I]n a workers’ compensation case, in which the employee is seeking benefits for [permanent partial disability], the employee has the burden of proving, inter alia, that his or her work-related injury caused the disability claimed.” Id. at 629.

As to the employee’s burden of proof with respect to the cause of the disability in a case where there is evidence of a pre-existing condition, the employee can show entitlement to permanent partial disability benefits, without any reduction for the pre-existing condition, by showing that it was non-disabling and that the ‘injury caused the condition to escalate to the level of a disability.

Id. (quoting Miller, 890 S.W.2d at 376).

Here, the record reveals that Claimant had experienced fever and chills within twelve to eighteen hours after the purported incident of August. 12, 1999. In time, Claimant experienced a body temperature of 100.4 degrees, and his treating physicians eventually prescribed two antibiotics. He was referred to Dr. Jeff Woodward (“Dr. Woodward”), an “occupational” medical physician, who initially treated Claimant for a “work-relate[d] lumbar strain.” However, Dr. Woodward eventually referred Claimant for an MRI scan. The MRI scan was performed on September 23, 1999, and showed that Claimant suffered from “infectious discitis” or a disk space infection.

In reviewing the MRI scan and consulting a neuroradiologist at Cox Medical Center, Dr. Woodward, who had previously treated Claimant for a musculo-skeletal disorder, then opined that “if the infectious discitis diagnosis is correct, then there has been no work-related injury_”

The record also reveals that a CT-directed needle biopsy was performed in Claimant’s L2-L3 disc space, which indicated “[c]hronic osteomyelitis with chronic per-iosteal inflammation.” In consultation with Dr. Gerecht, a board certified internal medicine specialist with a subspecialty in infectious diseases, Claimant was diagnosed with “[v]ertebral osteomielitis and dis[c]itis with continued symptoms.” Claimant was treated with antibiotics through a percutaneous inserted central catheter (“PICC”) line, and discharged to go home with intravenous antibiotic therapy which included Cefazolin and Cipro.

As previously related, Dr. Myers diagnosed Claimant as suffering from an annular tear in the disc at L4-L5 and L5-S1. He agreed that the radiologist who reviewed the MRI scan on September 23, 1999, did not find annular tears at any intervertebral disc, but noted such tears “oftentimes [are] not diagnosed radio-graphically.” Dr. Myers did not disagree with the treatment diagnosis or diagnostic measures taken by other treating physicians who found discitis and intervertebral osteomyelitis, but acknowledged, nevertheless, there existed an “overlap between those two conditions and [Claimant’s] complaints of pain.”

Dr. Myers, also acknowledged that “in-tervertebral osteomyelitis or dis[c]itis is normally not the first diagnosis to be considered when evaluating back pain ...” and that “dis[c]itis, intervertebral osteo-myelitis, is typically, in the ordinary course of medical practice, going to be a slower condition to diagnose rather than other sources of mechanical back pain.... ”

In his examination, Dr. Gerecht noted that the discitis was the reason for Claimant’s previous hospitalization and, likewise, the reason for follow-up office visits and his prescription of both intravenous and oral antibiotics. When asked whether “dis[c]itis [is] commonly associated by its onset with physical activity without direct penetrating trauma,” he answered, “[i]t usually is not.” On cross-examination Dr. Gerecht related that the “vast majority of Staph aureus infections are not latent, and it’s only a matter of time before somebody develops clinical symptomatology,” and that “[i]f you are pushing and straining, the symptoms might begin today rather than tomorrow.” But he also related that “[y]ou may notice the onset of symptoms with the stress or straining no matter what you are doing. Eventually you are going to become symptomatic. The question is when.”

Significantly, Dr. Gerecht acknowledged that Claimant’s condition, i.e., his dis[c]itis and associated vertebral osteomyelitis, did not result from Claimant “bending over.” He opined that the bending over was not the cause of the pain, but that the pain was a result of “the symptoms of the underlying disease.” Dr. Gerecht also discounted the possibility that a needle stick would have led to an infection in the low back.

As previously related, the Commission’s decision will be upheld if it is consistent with either of two conflicting medical opinions. Hutchinson v. Tri-State Motor Transit Co., 721 S.W.2d 158, 162 (Mo.App.1986), overruled in part by Hampton, 121 S.W.3d at 231. “The [Cjommission’s choice of one medical opinion over another is binding on us unless the choice clearly results from an abuse of discretion.” Decker v. Square D Co., 974 S.W.2d 667, 670 (Mo.App.1998). While the issue is close, “[w]e do not discern an abuse of discretion.” Id. “Where, as here, the Commission’s award incorporates the ALJ’s award and decision, we consider the findings and conclusions of the Commission as including the ALJ’s award.” Clark v. FAG Bearings Corp., 134 S.W.3d 730, 734 (Mo.App.2004). Both the ALJ, and the Commission by affirming the award of the ALJ, expressly found the medical opinions offered by Dr. Gerecht to be credible. Furthermore, “[a] reviewing court may not substitute its judgment for that of the Commission’s as to the issue of witness credibility.” Tangblade v. Lear Corp., 58 S.W.3d 662, 670 (Mo.App.2001).

Here, it was Claimant’s burden to prove that his injuries arose out of and in the course of his employment. Lytle v. T-Mac, Inc., 931 S.W.2d 496, 499 (Mo.App.1996), overruled in part by Hampton, 121 S.W.3d at 227. Nevertheless, “a claim will not be validated where some essential element is lacking.” Johnson v. City of Kirksville, 855 S.W.2d 396, 398 (Mo.App.1993), overruled in part by Hampton, 121 S.W.3d at 229. Based on our review of the record as a whole, including the opinions of Dr. Woodward and Dr. Gerecht, there is sufficient, substantial and competent evidence supporting the Commission’s final award denying compensation, based on a lack of a causal connection between Claimant’s underlying discitis and vertebral os-teomyelitis, a non-work related disease, and Claimant’s work activity on the day of the purported accident. Point denied.

The Commission’s final award denying compensation is affirmed.

SHRUM, P.J., and GARRISON, J., concur.

      . According to Claimant, at the time of his injury he was in a squatting position drilling holes in a vertical concrete cement slab with a one-inch drill which weighed approximately twenty pounds. Claimant stated that such drilling “required significant pushing and pulling." After drilling a number of holes and as he attempted to stand from a squatting position with the drill in his hands, Claimant felt a sharp pain in his low back and was unable to completely straighten up.

      . The ALJ explained, in part, that from his review of the medical testimony “[d]iscitis is an infection of the intervertebral disc itself. The infection may spread past the disc and surrounding area to be osteomyelitis, which is an infection of the osteovertebral bodies on either side of the disc.” Furthermore, the ALJ related that “[t]he disease can have a latent asymptomatic stage. The symptoms can be confusing since the first is back pain and that pain may progress, such as an impingement upon a nerve root with radiculopa-thy. The disease can progress to having fevers, chills, and other systemic systems.”

      . The ALJ expressly determined that the "medical conditions for which [Claimant sought] workers’ compensation benefits do not pertain to an injury by accident, as defined in [s]ection 287.020(2) and (3), RSMo, or an occupational disease, as defined in [s]ection 287.067(1), RSMo.” Further, the ALJ noted that the "exhibits before the Division do not identify an event or series of events, which would constitute an accident under [section] 287.020.2 RSMo. Nor does the evidence support a claim of occupational disease based on repetitive trauma."
      Unless otherwise stated, all statutory references are to RSMo 2000.

      . Respondent Ohio Casualty Insurance Company is the insurer in this case. “In Missouri, an insured employer’s liability is secondary and indirect; the insurer is primarily and directly liable.” Mikel v. Pott Indus., 896 S.W.2d 624, 625 (Mo. banc 1995); see also §§ 287.300 and 287.035.4.

      . Likewise, "[t]he claimant bears the burden of proving a direct causal relationship between the conditions of his employment and an occupational disease.” Jacobs v. City of Jefferson, 991 S.W.2d 693, 696 (Mo.App.1999), overruled in part by Hampton, 121 S.W.3d at 226. In proving up a work-related occupational disease, " ‘[a] claimant’s medical expert must establish the probability that the disease was caused by conditions in the work place.' ” Brundige v. Boehringer Ingelheim, 812 S.W.2d 200, 202 (Mo.App.1991) (quoting Sheehan v. Springfield Seed & Floral, Inc., 733 S.W.2d 795, 797 (Mo.App.1987)).

      . Dr. Myers agreed that a PICC line is as "a type of intravenous treatment so that the patient can have intravenous antibiotics fed to him.”


source: Caselaw Access Project

author: PATRICIA BRECKENRIDGE, Judge.

license: Public Domain

text:
    Dan BYRD, Appellant, v. FRANK B. WILSON TRUST, Respondent.
    No. WD 64628.
    Missouri Court of Appeals, Western District.
    Jan. 24, 2006.

      John P. Ryan, Jr., Grandview, MO, for appellant.
    Mark J. Bredemeier, Lee’s Summit, MO, for respondent.
    Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Dan Byrd appeals the summary judgment in favor of the Frank B. Wilson Trust on his suit for breach of contract for failure to pay his commission for the sale of real estate owned by the Trust. In his sole point on appeal, Mr. Byrd claims the trial court erred in granting the Trust’s motion for summary judgment because he fully performed his obligations under the contract and, therefore, was entitled to his commission. Because this court finds that Mr. Byrd produced a buyer ready, willing, and able to purchase the real estate on terms acceptable to the Trust, Mr. Byrd was entitled to his commission. Therefore, the trial court erred in granting the Trust’s motion for summary judgment. Accordingly, the trial court’s judgment is reversed, and this case is remanded to the trial court with directions to enter summary judgment in favor of Mr. Byrd.

Factual and Procedural Background

Both parties filed motions for summary judgment, agreeing that there are no disputed facts. The undisputed facts are that Frank B. Wilson established the Trust pri- or to his death, on May 12, 2002. Jan Martinette and Marietta Boenker, Mr. Wilson’s daughters, are co-trustees of the Trust. The Trustees decided to sell 18.8 acres of real estate, including Mr. Wilson’s former residence, and the personal property in and around the residence. Ms. Mar-tinette, as agent for the Trust, contacted Mr. Byrd, an individual in the business of auctioning personal and real property. Mr. Byrd operates his business under the name of Antler Ridge Auction Company. On October 6, 2002, Mr. Byrd and Ms. Martinette entered into two contracts for Mr. Byrd to sell the property by auction. One contract, titled “Personal Property Auction Contract,” provided that Mi*. Byrd was to sell the personal property by auction and receive a fifteen percent commission. The second contract, titled “Real Estate Auction Contract,” provided that Mr. Byrd was to sell the real estate by auction and receive a four percent commission. Under both contracts, the Trust was responsible for paying the advertising costs of the auctions.

Mr. Byrd conducted an auction of the Trust’s personal and real property on October 12, 2002. After the conclusion of the auction of the personal property, the Trust paid Mr. Byrd his commission in accordance with the terms of the personal property contract. At the auction of the real property, Dr. Daniel Downs’ bid of $575,000 was the high bid. In accordance with the terms of the real estate contract between Mr. Byrd and the Trust, Dr. Downs wrote a check payable to the Trust for ten percent of the bid, or $57,500. Dr. Downs gave the check to Ms. Martinette, as the agent of the Trust, who subsequently delivered the check to a title company. The Trust issued a receipt to Dr. Downs acknowledging that a down payment had been made and that the remainder of the $575,000 was due at closing.

On October 17, 2002, Mr. Wilson’s residence was destroyed by a fire of unknown origin. The fire destroyed all but the foundation and I-beam of the house. As a result of the fire, Dr. Downs stopped payment on the check for $57,500 and refused to follow through with purchase of the property. The Trust paid Mr. Byrd for the advertising costs associated with the real estate auction, but refused to pay him the four percent commission for sale of the real estate.

Mr. Byrd filed a petition for breach of contract against the Trust, claiming that he performed all of his duties under the contract and successfully sold the real estate and, therefore, was entitled to his commission. In its answer, the Trust asserted that because the real estate sale never closed, Mr. Byrd was not entitled to his commission. The Trust also raised, among other things, the affirmative defenses of impossibility of performance and commercial frustration. Both parties filed motions for summary judgment. Following oral arguments, the trial court denied Mr. Byrd’s motion for summary judgment, sustained the Trust’s motion for summary judgment, and dismissed with prejudice Mr. Byrd’s petition. The trial court also ordered Mr. Byrd to pay court costs. Mr. Byrd appeals.

Standard of Review

Appellate review of a summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). This court’s criteria for ascertaining the propriety of summary judgment are the same as those that a trial court uses initially. Id. This court does not defer to the trial court’s order granting summary judgment because the trial court’s initial judgment is based on the record submitted and amounts to a decision on a question of law. Id. Summary judgment is appropriate where the moving party establishes that no genuine issue of material fact exists and the party has a right to judgment as a matter of law. Id. at 378.

For movants who are the defending parties in a lawsuit, the prima facie showing required by Rule 74.04 is “necessarily different.” Id. at 381. A defending party may establish a right to judgment, as a matter of law, by showing:

(1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

Id.

Trust Not Entitled to Summary Judgment As a Matter of Law

In his sole point on appeal, Mr. Byrd claims the trial court erred in granting the Trust’s motion for summary judgment because he fully performed under the terms of the contract. Specifically, Mr. Byrd claims that because he completed the auction and produced a ready, willing, and able buyer, he fully performed all of his obligations under the terms of the contract and, therefore, he was entitled to his commission. The Trust argues, in response, that the contract required a consummated sale to a bidder at the auction before Mr. Byrd earned his commission.

Under Missouri law, the general rule is that “an agent or broker [is entitled] to his commission once he has produced a purchaser ready, willing and able to buy on the terms proposed by the vendor.” Shopen v. Bone, 328 F.2d 655, 658 (8th Cir.1964). In other words, “[t]he seller is liable for his broker’s commission when a purchaser is willing to buy on the seller’s terms or on terms agreeable to the seller.” Meridian Interests, Inc. v. J.A. Peterson Enters., Inc., 693 S.W.2d 179, 182 (Mo.App.1985).

In this case, the contract provided that the auction of the real estate was to be held on October 12, 2002. Under the contract, the Trust reserved “the right to accept or reject the final bid,” and the terms of the sale were specified as “10% Down Remainder at Closing.” On October 12, 2002, Mr. Byrd auctioned off the real estate as set forth in the real estate contract. At the auction, Dr. Downs made the winning bid to purchase the real estate for $575,000 and wrote a check to the Trust in the amount of $57,500, ten percent of his offer. The Trust accepted the down payment and issued a receipt to Dr. Downs, which indicated that the remainder was to be paid at closing. Once the Trust accepted Dr. Downs’ check for the down payment, Mr. Byrd successfully discharged his duty under the contract by producing a buyer ready, willing, and able to purchase the real estate on terms agreeable to the Trust.

Nevertheless, the Trust argues that the contract entered into between Mr. Byrd and the Trust manifested an intention that Mr. Byrd’s commission would not be earned until the sale of the real estate was fully consummated at a “closing.” The Trust argues that because the real estate contract contains the word “sale” in numerous places, the general rule that a broker is entitled to his commission when he produces a ready, willing, and able buyer, “whether or not the sale is completed,” is inapplicable in this case. In other words, the Trust argues that because the contract contemplated a “sale,” which the Trust defines as a “closing,” and because no closing occurred, Mr. Byrd was not entitled to his commission.

The Trust correctly notes that the general rule, providing that a broker is entitled to his commission when he produces a buyer ready, willing, and able to purchase on terms agreeable to the seller, may be modified by the contract. In particular, the seller’s liability to pay a broker his commission, “by express stipulation, may be contingent to vesting upon the occurrence or performance of other conditions or duties set forth in the contract of employment.” Duggins v. Simons, 517 S.W.2d 82, 92 (Mo.1974). The Trust cites several provisions of the contract containing the word “sale” that it claims demonstrates the parties’ intention to condition the Trust’s liability on “closing” of the real estate “sale.”

In particular, the Trust claims that the subtitle to the contract, “Agreement for Sale of Real Estate by Auction,” conveys an intention to transfer or sell real estate. (Emphasis added). The Trust also argues that the phrases, “[t]he auctioneer hereby agrees to use his professional skill, knowledge, and experience to the best advantage of both parties in preparing for and conducting the sale ” and “the [Trust] hereby releases [Mr. Byrd] from any liabilities that arise from the sale of said property,” further demonstrate that the purpose of the contract was to sell the real estate. (Emphasis added). In addition, the Trust claims that the contract provision setting the “Terms of sale,” under which was written, “10% Down Remainder at Closing,” “manifests the purpose of the agreement being the sale of real estate, not the mere conducting of an auction on a given day.”

In interpreting a contract, “a court will seek to ascertain the intent of the parties and to give effect to that intent.” Triarch Indus., Inc. v. Crabtree, 158 S.W.3d 772, 776 (Mo. banc 2005). “The intent of the parties to a contract is presumed to be expressed by the ordinary meaning of the contract’s terms.” Id. If a contract’s language is not ambiguous, this court will enforce it as written. Id. “If ambiguous, it will be construed against the drafter....” Id.

Applying these rules of construction, none of the contract provisions cited by the Trust expressly provide when Mr. Byrd was to earn his commission. Moreover, this court disagrees with the Trust’s argument that the real estate contract contemplated a real estate “closing.” Rather, the language of the contract indicates that the parties contemplated that a “sale” occurred, i.e., Mr. Byrd “sold” the property, not at “closing” but, rather, at the point in time when Mr. Byrd found a buyer agreeable to the Trust.

Specifically, under the contract, the Trust reserved the “right to accept or reject the final bid,” and “agree[d] that if [the] real estate [was] not sold on day of auction, but sells at a later date to a 10-12-02 registered bidder, then auctioneer is entitled to full commission.” (Emphasis added). Thus, contrary to the Trust’s argument, under the plain meaning of this contract provision, the parties contemplated that if Mr. Byrd found a buyer agreeable to the Trust, on the “day of auction,” the real estate would be considered “sold.” In agreeing that the property could be “sold” on the “day of auction,” the parties manifested their intent that a “sale” occurred when Mr. Byrd found a buyer agreeable to the Trust, not at “closing,” which would clearly occur at a point in time after the “day of auction.” The language of the contract does not support the Trust’s claim that the parties intended that a “closing” was a condition precedent to Mr. Byrd earning his commission.

This court reached a similar conclusion when determining whether a consummated sale was required by an agency contract in Concannon v. Point Mining & Milling Co., 156 Mo.App. 79, 135 S.W. 988, 991 (1911). In that case, this court rejected the argument made by the defendant that the plaintiff was not entitled to his sales commission because “there was no sale in fact” under the contract. In Concannon, the plaintiff was a barite salesman for the defendant company. Id. at 989. Under the terms of the agency contract between the plaintiff and the defendant, the plaintiff was entitled to a commission on all sales or shipments of barite made in a specified territory. Id. On December 15, 1906, the plaintiff brought together the president of the defendant company and representatives of interested purchasers, including the Hammer Paint Company. Id. During the course of negotiations, the parties agreed on the terms of a contract for the sale and shipment of barite for the upcoming year. Id. The details of the contract were eventually finalized in a written contract. Id. at 990. Eleven days after the written contract was signed by the purchaser, however, a change in market conditions prompted the defendant to refuse to sign the contract, repudiating the deal. Id. at 990-91. Consequently, no goods were ever shipped under the contract. Id. at 990. Nevertheless, the plaintiff alleged that he was entitled to his sales commission. After the defendant refused to pay the plaintiff his commission, the plaintiff sued claiming that, under the terms of his agency contract with the defendant, he had made a sale and, therefore, was entitled to his commission. Id. at 989. The defendant, however, argued that the plaintiff was not entitled to his commission because the term “sale” in the contract “means an actual sale, consummated by delivery, and not a mere sale in a commercial sense.” Id. at 991.

This court disagreed with the defendant, however, finding that because the plaintiff had brought the defendant and a purchaser together, and the defendant and the purchaser had agreed upon the terms of the transaction, the plaintiff had done all that he was obligated to do under the terms of the contract and, therefore, the plaintiff was entitled to his commission. Id. In reaching this conclusion, this court set forth the following principle regarding contracts for the sale of real estate. In particular, this court stated:

[A] real estate broker earns his commission when he finds and produces to the proposed seller one who is ready, able and willing to buy upon the terms upon which the broker is authorized to negotiate the sale, and in case the owner refuses to complete the transaction by delivery, the law declares the sale complete as far as the broker is concerned. His commissions are then due him. The performance of the contract upon his part was then complete and the sale consummated so far as the agent was concerned. He had done all that he had contracted to do and all that the law requires. It was not only out of his power to make delivery but he was under no obligation to do so: he could do no more than he had done. He earned his commission when he brought the parties together, and they had agreed to the sale and purchase.

Id. at 992 (emphasis added).

The facts of this case are that, on the day of the auction, Mr. Byrd produced a buyer who was ready, willing, and able to purchase the real estate on terms agreeable to the Trust. At this point in time, the sale was complete as far as Mr. Byrd was concerned. After completing the auction and finding an acceptable buyer, Mr. Byrd had done all that he had contracted to do. Similar to the salesman in Concan-non, who was unable to control the market, Mr. Byrd did not have the power to deliver the property to Dr. Downs or to protect the property from a casualty loss. In the absence of an express contract provision to the contrary, Mr. Byrd was entitled to his commission when he produced a buyer ready, willing, and able to purchase the property on terms agreeable to the Trust. See also Gwinnup v. Sibert, 106 Mo.App. 709, 80 S.W. 589, 590 (1904) (finding that the defendant could not argue that there was no sale because they refused to carry out their agreement to consummate the transaction when the plaintiff, a real estate broker, produced an able and willing buyer who paid a down payment). Mr. Byrd fulfilled his obligations under the terms of the real estate contract when the Trust agreed to Dr. Downs’ offer and, therefore, Mr. Byrd was entitled to his commission.

Nevertheless, the Trust further argues that the phrase “[t]he seller agrees that all expenses incurred for the advertisement, promotion, and of conducting said auction shall be first paid from the proceeds realized from said auction before the payment and satisfaction of any liens or encumbrances,” evidences an understanding that Mr. Byrd’s commission would be paid “from the proceeds realized from said auction.” In other words, the Trust claims that because proceeds are not received from the sale of real property until the sale is closed, if the sale did not close, “the seller would have no proceeds with which to pay the auctioneer his significant commission.” Thus, the Trust argues that it would never have agreed to pay a full commission on auctioned real estate that “failed to close.” The fact that Mr. Byrd was to receive the expenses of the auction out of the proceeds before payment of liens and encumbrances does not indicate the parties’ intent regarding when Mr. Byrd earned his commission. “[T]he mere fact the broker was to receive his compensation out of the proceeds of the sale does not make his right to compensation dependent at all events on the completion of the sale.” Shopen, 328 F.2d at 659. Viewed in the context of the other provisions in the contract, this court finds that the noted contract provision expresses no intent with regard to when Mr. Byrd earned his commission.

In sum, under Missouri law, in the absence of an “express stipulation” in the contract indicating a contrary intent, a broker is entitled to his commission upon producing a buyer ready, willing, and able to purchase the real estate on terms agreeable to the seller. Duggins, 517 S.W.2d at 92. Here, the contract between the Trust and Mr. Byrd contains no express provision regarding when Mr. Byrd earned his commission. Because Mr. Byrd produced a buyer ready, willing, and able to purchase the real estate on terms agreeable to the Trust, he was entitled to his commission. Therefore, the trial court erred in granting summary judgment in favor of the Trust, rather than for Mr. Byrd. Accordingly, the trial court’s judgment is reversed and the case is remanded to the trial court with directions to enter summary judgment in favor of Mr. Byrd.

All concur.

      . The Trust eventually sold the property to another purchaser who was not a registered bidder at the October 12, 2002 auction.

      . Considering that the trial court ruled on the merits of the case and granted summary judgment in favor of the Trust, the court's order that Mr. Byrd’s petition was dismissed with prejudice was contrary to the clear intent of the judgment and has no effect. Woodfill v. Shelter Mut. Ins. Co., 878 S.W.2d 101, 103 (Mo.App.1994) (intention of the court is determined from consideration of the judgment in its entirety). See also generally Mark Twain Elec., Inc. v. Yalem, 825 S.W.2d 366, 368 (Mo.App.1992) (comparison of procedure for dismissal to those for summary judgment).

      . The court in Shopen applied "the general principle entitling an agent or broker to his commission once he has produced a purchaser ready, willing and able to buy on the terms proposed by the vendor” to a contract for sale by an auctioneer, in recognition of the fact that the nature of an employment contract for the services of an auctioneer and an employment contract for the services of a broker are so similar that this principle applies equally to both situations. 328 F.2d at 658.

      . The Trust also argues that, even if the contract is interpreted so that Mr. Byrd earned his commission upon producing Dr. Downs, the affirmative defenses of impossibility of performance and commercial frustration bar his claim. Under Missouri law, however, "[t]he general rule is that a broker earns his commission when he produces a buyer ready, willing and able to buy on terms specified by the seller, whether or not the sale is completed.” Meridian, 693 S.W.2d at 182 (emphasis added). Because the contract contains no express provision deviating from this general rule, Mr. Byrd s duty under the contract was to produce a ready, willing, and able buyer. At the time Dr. Downs provided a check for the down payment to the Trust, Mr. Byrd produced such a buyer and, therefore, had done all he was obligated to do. In other words, the contract was complete as far as Mr. Byrd was concerned. Any possible defense regarding impossibility of performance or commercial frustration would arise in the context of the transaction between the Trust and Dr. Downs, not the Trust and Mr. Byrd.


author: ROBERT G. DOWD, JR., Judge.

text:
    STATE of Missouri, Appellant, v. Edward VINSON, Respondent.
    No. ED 86024.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 24, 2006.
    Daniel J. Proost, St. Louis, MO, for Appellant.
    Daniel P. Reardon, St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

The State of Missouri (“State”) appeals from the judgment granting Edward L. Vinson’s (“Defendant”) motion to dismiss. The State contends the trial court erred in granting Defendant’s motion to dismiss pursuant to the “anti-shuttling” provision of the Interstate Agreement on Detainers (“IAD”), Section 217.490, RSMo 2000, because Defendant waived his protections under the provision. We reverse and remand for further proceedings consistent with this opinion.

On June 27, 2001, Defendant was charged by indictment with twelve counts of felony stealing in violation of Section 570.030 in the Twenty-Second Judicial Circuit Court, City of St. Louis. After Defendant waived arraignment, the case was transferred to Division 16, the criminal assignment division.

On April 22, 2003, the case was assigned to Division 12 for trial, with Judge Dennis Schaumann presiding. The trial court was informed that Defendant was serving a sentence in the federal penitentiary in Marion, Illinois. Judge Schaumann issued a capias warrant to serve as a detainer. The trial court set Defendant’s bond at $10,000 and the case was returned to Division 16.

On May 3, 2004, while Defendant was still serving his federal sentence, Defendant’s attorney requested that the capias warrant be cancelled and the Defendant be granted a recognizance bond. The State objected to Defendant’s requests and the requests were denied.

On May 4, 2004, the circuit attorney executed a written request for temporary custody of Defendant pursuant to the IAD. In compliance with the requirements of Article IV of the IAD, federal authorities granted the State temporary custody of Defendant. Pursuant to the conditions of custody agreement, Defendant was not to be released on bond. Defendant was delivered from the federal penitentiary to the City of St. Louis Justice Center on July 23, 2004. Neither the circuit attorney’s office nor Defendant’s counsel was informed of Defendant’s presence.

After arriving in St. Louis, Defendant contacted his sister in an effort to have his $10,000 bond posted. Ernest Troupe (“Troupe”), Defendant’s sister’s husband and a professional bondsman, posted a $10,000 professional bond on July 25, 2004. Neither the State nor Defendant’s attorney had notice of the posting of the bond. Troupe signed the bond as a surety and Defendant signed the bond as principal, thereby canceling the capias warrant. The Pre-Trial Release Commissioner approved the transaction on July 26, 2004. Vinson was not released, but remained in custody in the City of St. Louis Justice Center for approximately five days. During that time, Vinson did not contact his attorney, nor was he brought before the court for further proceedings. Thereafter, Vinson was returned to the federal penitentiary in Marion, Illinois by members of the Metropolitan St. Louis Police Department without the knowledge of the circuit attorney’s office.

On December 9, 2004, the State filed a pretrial memorandum, in Division 16, Judge Donald McCuUin presiding, apprising the trial court of possible issues related to the anti-shuttling provision of the IAD. Thereafter, Defendant filed a motion to dismiss the indictment arguing the anti-shuttling provision of the IAD mandated dismissal of the State charges in St. Louis because he was returned to the federal penitentiary prior to disposition of those charges. Judge McCullin heard arguments on the motion and denied Defendant’s motion to dismiss finding Defendant waived any protections under the IAD by posting bond. The case was again transferred to Division 12, Judge Schaumann presiding, for a trial. On February 7, 2005, the day of the trial, Defendant requested the trial court to reconsider his motion to dismiss based on IAD violations. Over the State’s objection, Judge Schau-mann granted Defendant’s request and held a hearing on the motion. Subsequently, Judge Schaumann granted Defendant’s motion to dismiss finding Defendant had not waived his IAD rights under the anti-shuttling provision. Judge Schau-mann found that the provisions of the anti-shuttling provision are clear and unambiguous. Judge Schaumann also found that pursuant to the temporary custody agreement, Defendant did not have the right to be admitted to bail or placed on bond and that the only effect of the bond was to cancel the previously issued capias warrant. The State now appeals.

In its sole point on appeal, the State contends the trial court erred in granting Defendant’s motion to dismiss. The State argues Defendant waived his protections under the anti-shuttling provision because Defendant caused his own return to the federal penitentiary by voluntarily posting a bond.

Our review is de novo because the State’s point raises a question of law as to whether the trial court properly applied the law in dismissing Vinson’s indictment. State v. Lybarger, 165 S.W.3d 180, 184 (Mo.App. W.D.2005). However, to the extent the application of the law is based on the evidence presented, we view the facts in the light most favorable to the judgment, giving deference to the trial court’s factual findings and credibility determinations. Id.

The IAD is an interstate compact subject to federal construction. Ellsworth v. State, 964 S.W.2d 455, 456 (Mo.App. E.D.1998). The IAD applies to prisoners incarcerated in another jurisdiction who have untried Missouri charges and are subject to detainers originating in Missouri. State v. Branstetter, 107 S.W.3d 465, 472 (Mo.App. W.D.2003). The purpose of the IAD, as set forth in Article I, is to encourage the expeditious and orderly disposition of charges outstanding against a prisoner and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. Section 217.490. The IAD contains an “anti-shuttling” provision found in Paragraph 5 of Article IV, which provides:

If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to paragraph 5 of article V of this agreement, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Section 217.490.

The rights and protections created by the IAD are statutory rights, not fundamental or constitutional in nature. Kenneth-Smith v. State, 838 S.W.2d 113, 117 (Mo.App. E.D.1992); United States v. Black, 609 F.2d 1330, 1334 (9th Cir.1979)(holding that the “protections of the IAD are not founded on constitutional rights, or the preservation of a fair trial, but are designed to facilitate a defendant’s rehabilitation in prison and to avoid disruptions caused when charges are outstanding against the prisoner in another jurisdiction.”) As such, a defendant’s protections under the IAD can be waived. New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000); Kenneth-Smith, 838 S.W.2d at 117; United States v. Scallion, 548 F.2d 1168, 1174 (5th Cir.1977); United States v. Ford, 550 F.2d 732, 742 (2nd Cir.1977). Furthermore, it does not matter that a defendant does not knowingly or intelligently waive his IAD protections. Black, 609 F.2d at 1334. Under the IAD, waiver is shown by proof that the prisoner has affirmatively requested to be treated in a manner contrary to the IAD indicating waiver. Hill, 528 U.S. at 114, 120 S.Ct. 659. Kenneth-Smith, 838 S.W.2d at 117; United States v. Eaddy, 595 F.2d 341, 344 (6th Cir.1979).

A defendant may personally waive his or her protections under the anti-shuttling provision of the IAD. Ford, 550 F.2d at 742. In Ford, the defendant was in federal custody when he asked to be returned to Massachusetts custody “so that he and his attorney could more conveniently prepare for trial and because his family was in Massachusetts.” Id. at 735. The defendant was returned to Massachusetts upon his request. Id. In rejecting the defendant’s argument that this violated the IAD anti-shuttling provision, the court held:

The [anti-shuttling] provision, however, which is intended to avoid the disruptions in a prisoner’s rehabilitation occasioned by repeated transfers between jurisdictions, is thus for [the defendant’s] benefit and is waivable. Here, [the defendant] himself requested the transfer and by doing so waived his objection to it under [the anti-shuttling provision].

Id. at 742.

Further, a defendant may waive his or her protections under the IAD’s anti-shuttling provision even where they do not do so knowingly or intelligently. Black, 609 F.2d at 1334. In Black, the defendant was returned to state custody on three occasions before being sentenced on his federal charges, and argued that the federal government therefore violated the anti-shuttling provision of the IAD. Id. The court rejected the defendant’s argument finding that on each occasion the defendant requested his return. Id. The court held that “a defendant waives the protections of the IAD’s anti-shuttling provision when he requests the transfer before final disposition of the outstanding charges.” Id. The defendant then argued that even though he requested the transfers, he did not knowingly and intentionally relinquish his protections under the IAD. Id. The court rejected this argument finding that a knowing and intelligent waiver was not necessary because that requirement applies “only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.” Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The court concluded that the defendant, when he requested the return to state custody, waived his right and could not later contend that he did not do it knowingly and intelligently. Black, 609 F.2d at 1334.

Similarly, in Scallion, the defendant was transported from New York state custody to federal custody pursuant to a detainer request. Scallion, 548 F.2d at. 1169-1170. The defendant was arraigned and transported back to New York state custody pursuant to a request from the defendant’s attorney that he be temporarily returned to New York for a parole hearing. Id. In addressing the defendant’s argument that his return to New York state custody violated the anti-shuttling provision of the IAD, the court held that the defendant’s return to New York state custody was at the defendant’s request and that the defendant was therefore estopped from arguing a violation of the IAD’s anti-shuttling provision. Id. at 1170.

As in Ford, Black, and Scallion, Defendant’s return to federal custody was the result of his voluntary, affirmative actions. Here, Defendant’s voluntary, affirmative act of posting bond resulted in his being transported back to federal custody. Although Defendant did not specifically request to be returned to federal custody, his act of posting bond resulted in his return to the federal penitentiary. We find this act constituted an affirmative request for treatment in a manner contrary to the IAD. Pursuant to the IAD agreement, Defendant agreed that the agreement:

shall constitute a consent by me to the production of my body in any court where my presence may be required in order to effectuate the purposes of the Interstate Agreement on Detainers Act and a further consent voluntarily to be returned to the institution in which I am now confined.

Thus, Defendant agreed to remain in custody and by posting bond in an attempt to be released or cause his return to federal custody, Defendant acted in a manner contrary to the IAD.

Furthermore, at the hearing on his motion to dismiss, Defendant testified that he wanted to go back to federal custody to finish his federal sentence and he stated that he knew he would have to return to the federal penitentiary and “could not leave custody.” By posting bond which caused his return to federal custody, and thereby requesting treatment contrary to the IAD, Defendant waived his protection under the anti-shuttling provision of the IAD. Whether Defendant was aware that he was waiving his IAD protections does not matter because there is no requirement that waiver of IAD protections must be made knowingly or intelligently.

In support of his motion to dismiss, Defendant relied on Alabama v. Bozeman, 533 U.S. 146, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001), to support his contention that the language of the anti-shuttling provision is “plain, concise, and mandatory,” and thus, the indictment must be dismissed. In Bozeman, the defendant made a request for disposition of detainers pursuant to the IAD. Id. at 151, 121 S.Ct. 2079. The state then brought the defendant from federal custody to state custody for one day for an arraignment and then returned him to federal custody. Id. The defendant filed a motion to dismiss alleging that his being transported to state custody for one day and then being returned to federal custody was a violation of the anti-shuttling provision of the IAD. Id. The trial court denied his motion and the defendant was subsequently convicted. Id. at 152, 121 S.Ct. 2079. The Alabama Supreme Court reversed the defendant’s conviction finding that the state violated the IAD when it returned the defendant to federal custody. Id. The United States Supreme Court affirmed the Alabama Supreme Court’s decision, rejecting the state’s argument that the shuttling of the defendant for one day for arraignment was a “technical, harmless, or de minimus ” violation of the IAD’s anti-shuttling provision. Id. at 153, 121 S.Ct. 2079. The Court held that the language of the IAD “militates against an implicit exception, for it is absolute.” Id.

The Court in Bozeman, however, noted that the state did not claim that the defendant waived his IAD rights and stated “[n]or does [the state] claim that [the defendant] waived the right to trial before return that Article IV provides.” Id. at 152, 121 S.Ct. 2079. The Court further clarified at the end of its opinion that:

[although we reject [the state’s] interpretation of the [IAD], our decision does not bar a receiving State from returning a prisoner when it would be mutually advantageous and the prisoner accordingly waives his rights under the [anti-shuttling provision].

Id. at 156-57, 121 S.Ct. 2079 (citing Hill, 528 U.S. at 114-15,120 S.Ct. 659).

We find the Bozeman case factually distinguishable from the present case. In Bozeman, the state intentionally transported the defendant from federal custody to state custody for one day and then returned him to federal custody. The defendant in Bozeman took no action with regard to the shuttling and therefore, the state could not argue waiver, but instead argued that the violation was trivial. Here, unlike Bozeman, it was Defendant’s own voluntary action, and not the State’s action, that led to Defendant’s return to federal custody.

We find by his voluntary and affirmative action of posting bond which caused his return to federal custody, Defendant waived his protections under the IAD’s anti-shuttling provision. Thus, the trial court erred in dismissing the indictment. The trial court’s dismissal of the indictment is reversed and the cause is remanded for further proceedings consistent with this opinion.

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

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

      . The record is unclear as to the procedures and decisions leading up to Defendant's return to federal custody.

      . Defendant was released from federal custody on November 5, 2004.

      . In his judgment, Judge McCullin specifically stated:
      In the instant case, defendant made bond. When defendant made bond he was still subject to a detainer in the federal prison. A natural consequence of his making bond was that he would be returned to federal prison. This was a voluntary act on defendant’s part having the consequence of sending him back to federal prison. As a result, defendant waived his right to the protection of the anti[-]shuttling provision of the IAD.


author: PER CURIAM.

text:
    GLOBAL RUG CORPORATION, d/b/a Hakimian Brothers Oriental Rugs, Appellant, v. FIDELITY AND GUARANTY INSURANCE UNDERWRITERS, INC., Respondent.
    No. ED 86239.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 24, 2006.
    Daniel F. Wagner, Jr., Clayton, MO, for Appellant.
    Michael B. Maguire, St. Louis, MO, for Respondent.
    Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
   ORDER

PER CURIAM.

Global Rug Corporation (Global) appeals from the grant of summary judgment in favor of Fidelity and Guaranty Insurance Underwriters, Inc. (Fidelity) on its claim for policy proceeds following water damage to its retail store. On appeal, Global argues the trial court erred in granting summary judgment in favor of Fidelity because (1) the insurance policies in dispute did not limit coverage to $25,000, (2) the insurance policies were not clear and unambiguous, and (3) there is a genuine issue of material fact with respect to the issuance and delivery of Fidelity Policy No. BK01244036 (036 Policy). We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    SHELTER MUTUAL INSURANCE COMPANY, Appellant, v. William MARQUIS d/b/a Brakes & More, Respondent.
    No. ED 86237.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 24, 2006.
    William B. Starnes, Edwardsville, IL, for appellant.
    Melroy B. Hutnick, Belleville, IL, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Shelter Mutual Insurance Company (hereinafter, “Shelter”) appeals from the trial court’s judgment declaring Shelter must provide underinsured motorist insurance to William Marquis d/b/a Brakes N’ More (hereinafter, “Marquis”) after Marquis was involved in an automobile accident in 1994. Shelter raises two points on appeal. First, Shelter argues the trial court erred in holding Marquis was entitled to underinsured motorist coverage because he breached the insurance policy by settling his claim with the underlying tort-feasor without Shelter’s consent. Second, Shelter claims the trial court’s finding that there was no proof of prejudice was erroneous in that Shelter argues it lost its right of subrogation as a result of Marquis’ settlement.

We have reviewed the briefs of the parties, the legal file, and the transcript and find the trial court’s decision was not erroneous. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    Donnie W. SUTTON, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 86186.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 24, 2006.
    Amanda R. Schehr, St. Louis, MO, for appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Jefferson City, MO, for respondent.
    Before MARY K HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Movant, Donnie W. Sutton, appeals from the judgment denying his Rule 24.035 motion after an evidentiary hearing. On appeal, movant argues his counsel was ineffective in failing to inform him prior to his guilty plea that the plea agreement required him to plead guilty to armed criminal action.

The motion court’s findings and conclusions are not clearly erroneous. Rule 24.035(k). An extended opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Ronald GORDON, Appellant.
    No. ED 85559.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 24, 2006.
    Timothy Forneris, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Ronald Gordon (“Defendant”), appeals from the judgment of the Circuit Court of the City of St. Louis, following a bench trial, in which he was convicted of domestic assault in the first degree (Count I), section 565.072, RSMo 2000, and armed criminal action (Count II), section 571.015. Defendant was sentenced to ten years of imprisonment for Count I and three years of imprisonment for Count II, with the sentences to run concurrently. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 30.25(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

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


text:
    Christopher COUCH, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85702.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 24, 2006.
    Scott Thompson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Roger W. Johnson, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Movant, Christopher Couch, appeals from the judgment denying his Rule 24.035 motion without an evidentiary hearing. On appeal, movant argues that his plea counsel rendered ineffective assistance by promising him that he would not receive more than a ten-year sentence if he pled guilty.

The motion court’s findings and conclusions are not clearly erroneous. Rule 24.035(k). An opinion would have no prec-edential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


text:
    Micah D. GRIFFIN, Petitioner/Appellant, v. Lance A. HUGHEY, Defendant/Respondent.
    No. ED 85642.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Jan. 24, 2006.
    John L. Oliver, Jr., R. Scott Killen, Oliver, Oliver & Waltz, P.C., Cape Girardeau, MO, for appellant.
    Thomas L. Hoeh, Perryville, MO, for respondent.
    Before GLENN A. NORTON, C.J. and ROBERT G. DOWD, JR., J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Micah D. Griffin appeals the trial court judgment entered, after a non-jury trial, in favor of Lance A. Hughey on all counts of Griffin’s complaint and in favor of Hughey in quantum meruit on both counts of his counterclaim, awarding Hughey a total of $13,521.56 on his counterclaim; declaring Hughey’s interest in furniture, furnishings, and household goods then in Griffin’s possession, as well as certain real estate then titled in both parties’ names, be vested in Griffin alone upon Griffin’s payment of the $13,521.56 awarded to Hughey; directing Griffin to pay costs; and denying all other requests for relief by the parties.

We have reviewed the briefs of the parties, the legal ñle, and the record on appeal, and find the claims of error to be without merit. The judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum, for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.16(b).


author: GLENN A. NORTON, Chief Judge.

text:
    CLIENT SERVICES, INC., Appellant, v. THE CITY OF ST. CHARLES, Respondent.
    No. ED 85579.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 24, 2006.

      William A. Hellmich II, St. Louis, MO, for respondent.
    Paul Puricelli, St. Louis, MO, for appellant.
   OPINION

GLENN A. NORTON, Chief Judge.

Client Services, Inc. (“CSI”) appeals the summary judgment entered in favor of the City of St. Charles in a dispute involving a land sale contract. We affirm.

I. BACKGROUND

The City controls an undeveloped tract of real estate. It sought proposals for the purchase and development of the property. After selecting CSI’s proposal, the City passed an ordinance authorizing the mayor and the city clerk to execute a purchase and sale agreement with CSI. See St. Charles, Mo., Ordinance 03-11 (Jan. 15, 2003). Attached to the ordinance was a form agreement, which the mayor and the city clerk subsequently signed. An undated purchase and sale agreement signed by the mayor and city clerk was apparently sent to CSI, but it was not signed by anyone representing the company.

Several months later, the city administrator met with representatives of CSI concerning execution and closing of the purchase and sale agreement. Thereafter, the city administrator drafted and signed a letter he intended to serve as a confirmation of the understandings reached at that meeting. The letter indicated that the City would perform certain acts to assist in closing the transaction if CSI committed to executing the purchase and sale agreement on or before August 1, 2003, in the form in which it was tendered to CSI by the City. The letter also indicated that if CSI did not meet the deadlines set forth therein, the City would re-evaluate its offer to enter into the agreement. The letter was signed by the city administrator and by the president of CSI.

Prior to closing, during a closed-session discussion, the city council and the mayor agreed by acclamation to authorize the city administrator to revoke the offer of the purchase and sale agreement. The next day, the city administrator delivered notice of the revocation to CSI. At no time before delivery of this notice had CSI delivered a fully executed purchase and sale agreement to the City or otherwise communicated its acceptance of the offer to the City. Two days after the City revoked its offer, CSI provided the City with a fully executed copy of the purchase and sale agreement and requested a closing under the contract. The City has never attempted to revoke the letter confirming the parties’ agreements after their meeting, nor has the ordinance authorizing the offer ever been repealed.

CSI filed an action against the City for specific performance of the purchase and sale agreement. CSI alleged that it was ready, willing and able to perform the agreement and that there was no adequate remedy at law. CSI also sought specific performance of the City’s obligations under the letter. The City responded that no enforceable contract for the sale of the property existed and that there was no contractual relationship between the parties. The City also filed a counterclaim for declaratory judgment.

On cross-motions for summary judgment, the court granted judgment in favor of the City both on the claims in CSI’s petition and on the City’s counterclaim for declaratory judgment. As alleged in the City’s counterclaim, the court found that the offer had been properly revoked by the City prior to CSI’s acceptance, that CSI had not accepted the offer prior to revocation, that the purchase and sale agreement was null and void and of no legal effect, that there was no contractual relationship between the parties and that the letter had no legal effect. CSI appeals.

II. DISCUSSION

The propriety of summary judgment is a question of law, and our review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for determining the propriety of summary judgment on appeal are no different than those used at the trial level. Id. A defending party, like the City, may establish a right to judgment by showing (1) facts that negate any one of the elements of the plaintiffs claim, (2) that the plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of those elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support a properly-pled affirmative defense. Id. at 381. Although we view the record and construe all inferences favorably to the non-movant, facts set forth in support of the summary judgment motion are taken as true unless contradicted by the non-movant’s response. Id. at 376.

A. Necessity of Repealing the Ordinance

In its first point, CSI argues that the trial court erred in granting the City’s motion for summary judgment because the ordinance directed the mayor and the city clerk to execute the purchase and sale agreement with CSI and, absent repeal of that ordinance, the City had no authority to revoke the agreement. CSI claims that the city council’s and the mayor’s decision to direct the city administrator to notify CSI that the offer was revoked was ineffective and that the mayor still has the duty to enter into an agreement with CSI. We disagree.

Based on its characterization of the decision to authorize revocation as a “resolution,” CSI notes that Missouri distinguishes between a resolution and an ordinance. Rice v. Huff, 22 S.W.3d 774, 782 (Mo.App. W.D.2000). Where legislative action is required, it is generally understood that a city can only act by duly-enacted ordinance and not by resolution. Id. at 781-82. A duly-enacted ordinance cannot be repealed by a resolution or other act of less dignity than the ordinance itself. Layne v. City of Windsor, 442 S.W.2d 497, 500 (Mo.1969) (citing Stratton v. City of Warrensburg, 237 Mo.App. 280, 167 S.W.2d 392, 396 (1942)). A resolution is not a law, and in substance there is no difference between a resolution, an order and a motion. Rice, 22 S.W.3d at 782. A resolution generally is a mere expression of the council’s opinion concerning some matter of administration coming within its official cognizance and provides for the disposition of a particular item of a municipality’s administrative business. Id. Thus, a resolution relates to administrative business and will not suffice when action by the municipality is required to be taken by ordinance. Id.

In making its argument that the decision to grant the city administrator authority to revoke the offer was ineffective because the authority to make the offer was made by ordinance, CSI principally relies on Layne, supra, and on Russell v. City of Raytown, 544 S.W.2d 48 (Mo.App.1976). Its interpretation of these cases to support its argument, however, is incorrect. In Layne, the city employed the plaintiff under a contract that was “incorporated and set forth in a duly enacted ordinance.” 442 S.W.2d at 498. His job was created to plan and supervise a sewer extension project that was to be constructed in the city. Id. After the project’s bond issue proposal failed when submitted to voters, the city’s board of aldermen adopted a resolution abandoning the program. Id. At some time later, another engineer was employed by the city and a subsequent bond issue was approved by the voters. Id. The plaintiff then sought to recover damages on a breach of contact claim. Id.

In affirming the trial court’s judgment in favor of the city, the Missouri Supreme Court recognized that a duly-enacted ordinance cannot be repealed by resolution since a resolution relates to a municipality’s administrative business and “will not suffice when action on the part of the municipality is required to be taken by ordinance.” Id. at 500. The Court also noted that the terms of the contract having to do with sewage disposal required legislative action because of the subject matter. Id. The Court concluded, however, that the resolution accomplished no change in the parties’ positions with respect to the contract. Id. The Court opined that this analysis had no direct application to the case because the resolution served no purpose other than notification. Id. It held that the contract had already expired by virtue of its own terms when the bond issue was defeated and no contractual relationship then existed between the parties. Id.

In Russell, a city attorney filed suit against the city after he was dismissed, contending that his removal was ineffective because he had been appointed by ordinance but had been removed by resolution of the board of aldermen. 544 S.W.2d at 50. The trial court found the removal ineffective because of the city’s failure to follow a separate personnel ordinance. Id. The trial court did not find that the removal was ineffective on the ground that the attorney was dismissed by resolution after having been appointed by ordinance. Id. The appellate court reversed and found that the city’s personnel ordinance did not apply to the city attorney position because State law conferred upon the mayor the power to remove the city attorney at any time and an ordinance cannot be contrary to state law. Id. at 51. The attorney also maintained, however, that an action taken by ordinance can only be superseded by an' action taken by an ordinance and not by a resolution. Id. at 52. While the Court did not expressly agree or disagree with this statement, it did specifically disagree with the contention that it would be impermissible for the board to act with a summary procedure to remove persons who were appointed by ordinance except through enacting another ordinance. Id. The Court stated that the attorney was not actually appointed by ordinance; rather, he was appointed by the mayor and “the ordinance can be only regarded as the necessary approval given by the [b]oard” as required by law. Id. Thus, because the consent required from the majority of the board could take any form (including, for example, an ordinance, a resolution, or a motion) as the form was not specified by statute, the Court held that “the resolution approving [the attorney’s] removal did not supersede the ordinance by which he was purportedly appointed.” Id.

The City points out, relying on Russell, that simply because the original authorization of the offer by the city council was memorialized by ordinance does not mean that the subsequent authority to revoke the offer was also required to be enacted by ordinance. We agree.

Missouri law does not specify that a city council must approve a mayor’s authority to enter into a contract by duly-enacted ordinance. See section 432.070 RSMo 2000. Rather, an executed contract between a city and another party “shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.” Id. In addition to section 432.070, the City’s charter states that “[t]he mayor shall sign in behalf of the city all ... agreements ... binding the city or conveying an interest in property_” St. Charles, Mo. Charter, section 4.3(f). The charter provision similarly does not mandate that council approve of such action in a particular form. Id.

While the City chose to authorize the contract in the form of an ordinance, the ordinance merely authorized and directed the mayor and city clerk to execute a purchase and sale agreement with CSI. It did not specify how the offer was to be made or withdrawn. Stated differently, the offer to CSI was not actually made by the ordinance. By signing and delivering the agreement to CSI, the mayor and the city clerk complied with the ordinance. Thus, whether the city council repealed the ordinance was irrelevant. Similar to the ordinance in Russell, the ordinance in this case can only be regarded as the necessary approval given by the city council authorizing the mayor as a duly-appointed agent to enter into a contract on behalf of the City as required by law. See section 432.070; St. Charles, Mo. Charter, section 4.3(f). Rather, the only action required by the ordinance was the delivery of a signed contract to CSI. While a repeal of the ordinance may have been required to terminate the mayor’s initial obligation to execute the agreement with CSI, the City had the ability to revoke the offer after the mayor complied with the ordinance in any form. Thus, it does not matter whether the decision to revoke the offer superseded the ordinance.

Also, as in Layne, the decision authorizing the city administrator to revoke the contract accomplished no change in the respective positions of the parties. CSI argues that the City had seller’s remorse and is disregarding its contractual obligations. But since CSI had not signed the contract nor performed any of its terms, there was not yet a contractual relationship between the parties prior to the withdrawal of the offer by the City. In addition, the ordinance does not require the City to hold its offer open indefinitely. The mayor complied with the ordinance when she signed the purchase and sale agreement and delivered it to CSI. The mayor could not compel CSI to sign it.

Point denied.

B. Validity of Action Taken at Closed Meeting

In its next point, CSI argues that the trial court erred in granting the City’s motion for summary judgment because the decision to revoke the purchase and sale agreement was made in a closed meeting, allegedly in violation of the City’s charter and the Missouri Sunshine Law. CSI maintains that, even if the council had the authority to revoke the offer without enacting a new ordinance, the charter still required the council to act pursuant to motion and vote at a public meeting, which did not happen here. Thus, CSI argues that the decision by the council to revoke the offer was illegal and void. We disagree.

CSI points to the City’s charter, which provides that “[n]o action by the council shall have legal effect unless the motion for the action and the vote by which it is disposed of take place at proceeding open to the public.” St. Charles, Mo. Charter section 3.10(a). In response, the City argues that because the Sunshine Law authorizes closed meetings in certain circumstances under section 610.021 (including where the subject of the meeting is real estate sales) the Sunshine Law — not the City’s charter — should govern whether or not the City may hold a closed meeting.

Under Missouri law, a charter provision that conflicts with a state statute is void to the extent of the conflict. City of Springfield v. Goff, 918 S.W.2d 786, 789 (Mo. banc 1996). Such a conflict exists where a charter prohibits what a statute permits. Id. Notwithstanding this principle, the Sunshine Law permits closed meetings “[ejxcept to the extent disclosure is otherwise required by law....” Section 610.021. Relying on this language, CSI argues that under the City’s charter, disclosure is “otherwise required” despite any exceptions contained in the Sunshine Law. CSI further contends that section 3.10 of the charter has the same legal effect as a Missouri statute since charter provisions have the same force as acts of the General Assembly so long as they are consistent with state and federal constitutional requirements and statutes relating to matters of statewide concern. See Bueche v. Kansas City, 492 S.W.2d 835, 842 (Mo. banc 1973).

We need not decide whether the City’s charter provision prevails over the Sunshine Law real estate exception because the charter does not apply in this case. In construing city charter provisions, courts seek the intent of its drafters as gleaned from the language used. State ex rel. City of Springfield v. Bonacker, 923 S.W.2d 467, 469 (Mo.App. S.D.1996). It is presumed that the enacting body intended a logical result. Id. In addition, all parts of the charter provisions should be construed together. State ex rel. Childress v. Anderson, 865 S.W.2d 384, 387 (Mo.App. S.D.1993). Section 3.10 appears in the City’s charter under the heading “Legislative Proceedings.” While we acknowledge that headings do not necessarily dictate the meaning of actual provisions, read in its entirety, section 3.10 of the charter concerns legislative acts, such as voting on motions, enacting ordinances, veto procedures and formation of procedural rules. Section 3.10(a), which contains the specific language CSI cites, deals with the regular monthly and special meetings of the City council. Read in this context, it appears that the language set forth in section 3.10(a) requiring the council to hold an open meeting in order for the action taken to have “legal effect” was intended to apply to acts that are legislative in nature Cf. Kinder v. Holden, 92 S.W.3d 793, 806 (describing executive orders that constitute communications to subordinate executive branch officials regarding the execution of their executive branch duties as not being legally enforceable and distinguishing them from executive orders that implement or supplement the state’s constitution or statutes and which have the force of law).

Here, the council and the mayor held a discussion, during which they authorized the city administrator to revoke the contract with CSI. Rather than a legislative act intended to have “legal effect,” the authorization was a mere expression of the council’s opinion concerning a matter of administration coming within its official cognizance — namely, whether the city administrator has authorization to perform a certain act on behalf of the City. Neither the charter nor Missouri State law requires legislative action to grant the city administrator authority to revoke a contract offer on behalf of the City. If we were to agree with CSI’s interpretation of the provision as barring closed meeting discussions between the council and the mayor whenever a non-legislative decision is made, then the City council would be unable to discuss other confidential matters — such as personnel and legal issues-— in private. Because we presume that the enacting body intended a logical result when it enacted the City’s charter, we disagree with CSI’s interpretation of section 3.10(a) as requiring an open meeting under these circumstances. Accordingly, because the discussion authorizing the city administrator to revoke the offer was not intended to have legal effect, the city council was entitled to hold the discussion in a closed meeting.

CSI also argues that the City bears the burden of proving its compliance with the requirements of the Missouri Sunshine Law, which was interposed as an affirmative defense. But this presupposes that CSI has sought judicial enforcement of that law. The government’s burden to demonstrate compliance with the Sunshine Law is only triggered “[o]nce a party seeking judicial enforcement of sections 610.010 to 610.026 demonstrates to the court that the body in question is subject to the requirements of [the Sunshine Law] and has held a closed meeting, record or vote.... ” Section 610.027.2. CSI did not seek such a determination in the trial court. Neither its original petition nor its reply to the City’s counterclaim even mentions the Sunshine Law, much less invokes judicial enforcement of its provisions or the charter and the underlying policy concerning open meetings.

Point denied.

C. Significance of Letter

CSI argues in its final point that the trial court erred in granting summary judgment to the City because, even if the offer was properly revoked, the City never revoked the letter executed after the parties’ meeting. CSI argues the letter was a separate agreement binding the City. It further argues that the case should be remanded because a genuine issue of fact exists relating to the enforceability of the letter. We disagree.

Without more, the letter cannot be considered an enforceable contract for the sale of real estate. It lacks virtually all of the requirements for a valid contract for the sale of real estate, including identification of the land, price and the date of closing. Cf. In re Estate of Looney, 975 S.W.2d 508, 515 (Mo.App. S.D.1998) (essential terms of a contract for the sale of real estate are the parties, the subject matter, the consideration, the price, and promises upon both sides). Also, it clearly refers to another document as the offer and to the possibility that the offer may be re-evaluated by the parties. The letter states that it merely serves as “confirmation of the understanding reached” at the meeting concerning the execution and closing of the purchase and sale agreement. Even if the City was bound by the terms of the letter, it was not required to keep its offer open until August 1st, as contemplated by that letter, because it was not an option contract supported by consideration. See, e.g., I.R. Kirk Farms, Inc. v. Pointer, 897 S.W.2d 183, 185 (Mo.App. W.D.1995) (offeror free to revoke offer at any time by communicating to offeree pri- or to acceptance unless the offer is supported by consideration making the offer irrevocable).

CSI points to the testimony of the city administrator in arguing that the modification of the original offer was an entirely appropriate administrative exercise pursuing the plan already adopted by the legislative body itself. However, it is clear from our analysis of the first point on appeal that only the mayor, and not the city administrator, has the authority to sign a contract for the sale of real estate and bind the City, even if the city administrator had the authority to negotiate the terms of the deal. There is no indication that the city administrator was authorized, in writing or otherwise, to sign any document for the purpose of executing a land sale contract, as required under section 482.070.

Point denied.

III. CONCLUSION

The judgment is affirmed.

LAWRENCE E. MOONEY, J. and BOOKER T. SHAW, J. concurring.

      . All statutory references are to RSMo 2000.

      . While CSI's summary judgment refers to the alleged violation of the City charter, it did not seek enforcement of the Sunshine Law. Rather, in requesting specific performance, CSI only claimed that the closed meeting did not grant authority to the city administrator nor repeal the ordinance.


text:
    Jessi NIENKE, Claimant/Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. ED 87011.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 24, 2006.
    Jessi Nienke, St. Louis, MO, appellant acting pro se.
    Cynthia A. Quetsch, Jefferson City, MO, for respondent.
   GLENN A. NORTON, Chief Judge.

Jessi Nienke (Claimant) appeals from the decision of the Labor and Industrial Relations Commission regarding her unemployment benefits. Because this Court is without jurisdiction, the appeal is dismissed.

A deputy from the Division of Employment Security concluded Claimant was ineligible for unemployment benefits for failing to satisfy the reporting requirements. Claimant appealed to the Appeals Tribunal, which dismissed her appeal. Claimant then filed an application for review with the Commission, which affirmed the Appeals Tribunal’s decision on August 18, 2005. Claimant filed a notice of appeal to this Court on September 29, 2005.

A claimant has twenty days to appeal the Commission’s final decision. Section 288.210, RSMo 2000. The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the Secretary for the Commission mailed its decision to Claimant on August 18, 2005. The decision became final ten days later and Claimant’s notice of appeal was due on Monday, September 19, 2005. Sections 288.200.2, 288.210, 288.240, RSMo 2000. Claimant filed her notice of appeal on September 29, 2005, which is untimely.

This Court has a duty to examine its jurisdiction sua sponte. Watkins v. Kings Food Philips Inc., 160 S.W.3d 421 (Mo.App. E.D.2005). We issued an order directing Claimant to show cause why her appeal should not be dismissed. Claimant has filed a response, stating she had no excuse for failing to file her notice of appeal in a timely fashion.

Section 288.210 makes no provision for late filing of a notice of appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). In an unemployment case, an untimely notice of appeal deprives this Court of jurisdiction to entertain the appeal. Frenchie v. Division of Employment Sec., 156 S.W.3d 437, 438 (Mo.App. E.D.2005).

Claimant’s appeal is dismissed for lack of jurisdiction.

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


author: GLENN A. NORTON, C.J.

text:
    Judy LITTLE, Plaintiff/Appellant, v. HOGAN TRANSPORT, INC., Defendant/Respondent.
    No. ED 87181.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 24, 2006.
    James F. McMullin, St. Louis, MO, for respondent.
    Judy Little, St. Louis, MO, appellant acting pro se.
   GLENN A. NORTON, C.J.

Judy Little (Appellant) appeals from the trial court’s judgment dismissing her petition with prejudice. Because her notice of appeal to this Court is untimely, her appeal is dismissed.

In response to Appellant’s appeal, Hogan Transport, Inc., (Respondent) has filed a motion to dismiss. Respondent asserts her appeal is untimely. Appellant has not filed a response to Respondent’s motion.

Under Rule 81.04(a), the notice of appeal must be filed no later than ten (10) days after the judgment becomes final. If a party files a timely authorized after-trial motion, the judgment becomes final at the expiration of ninety (90) days after the filing of the motion or, if such motion is passed on at an earlier date, at the later of: (1) thirty (30) days after the entry of judgment; or (2) disposition of the motion. Rule 81.05(a)(2). However, if no authorized after-trial motion is filed, the judgment becomes final thirty (30) days after the entry of the judgment. Rule 81.05(a)(1).

Here, the trial court entered its judgment on June 17, 2005. According to the minute entries, Appellant did not file an after-trial motion. Therefore, the judgment was final on Monday, July 18, 2005. Rule 81.05(a)(1); Rule 44.01(a). The notice of appeal was due on July 28, 2005. Rule 81.04(a). Appellant filed the notice of appeal on November 1, 2005 and it is untimely. When a notice of appeal is untimely filed, this court is without jurisdiction and must dismiss the appeal. Budd v. Budd, 157 S.W.3d 229, 230 (Mo.App. E.D.2004).

Respondent’s motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction.

KATHIANNE KNAUP CRANE and BOOKER T. SHAW, JJ.