author: RICHARD B. TEITELMAN, Judge.

text:
    Darius NICHOLSON, Appellant, v. STATE of Missouri, Respondent.
    No. SC 86143.
    Supreme Court of Missouri, En Banc.
    Dec. 21, 2004.

      S. Kristina Starke, Assistant Public Defender, St. Louis, Lew A. Kollias, Appellate/PCR Division Director, Columbia, for appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Shaun J. Mackelprang, Andrea M. Follett, Assistant Attorneys General, Jefferson City, for respondent.
   RICHARD B. TEITELMAN, Judge.

Darius Nicholson filed a pro se motion for post-conviction relief under Rule 29.15. The circuit court dismissed Nicholson’s motion as untimely. The judgment is reversed.

FACTS

Nicholson was convicted in the circuit court of Cape Girardeau County of murder in the second degree, armed criminal action and robbery in the first degree. He was sentenced to concurrent terms of life imprisonment for murder, 30 years of imprisonment for armed criminal action and 30 years imprisonment for robbery. Nicholson’s convictions and sentences were affirmed on appeal. State v. Nicholson, 84 S.W.3d 491 (Mo.App.2002). The mandate issued on October 9, 2002.

Under Rule 29.15(b), Nicholson had to file his motion within 90 days of the issuance of the mandate affirming his convictions and sentences. The 90-day time period for filing a timely Rule 29.15 motion expired on January 7, 2003.

On January 6, 2003, Nicholson filed his pro se Rule 29.15 motion for post-conviction relief in the circuit court of the City of St. Louis. However, under Rule 29.15(a), the proper venue for the motion was in Cape Girardeau County. The circuit court of the City of St. Louis forwarded the motion to the circuit court of Cape Girar-deau County, but the motion was not received until January 9, 2003, two days after the January 7, 2003 filing deadline. The motion court dismissed Nicholson’s Rule 29.15 motion with prejudice, finding that it was untimely filed, thus depriving the court of jurisdiction.

ANALYSIS

Appellate review is limited to determining whether the findings and conclusions of the trial court are clearly erroneous. Rule 29.15(k). Findings of fact and conclusions of law are clearly erroneous only if after a review of the whole record, the Court is “left with a definite and firm impression that a mistake has been made.” State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996).

Section 476.410 provides that a “court in which a case is filed laying venue in the wrong division or wrong circuit shall transfer the ease to the division or circuit in which it could have been brought.” The statute gives the circuit court in which a pleading was erroneously filed “limited jurisdiction ... to transfer any case filed in an improper venue to any circuit court otherwise designated by the legislature to hear the particular matter.” State ex rel. Director of Revenue v. Gaertner, 32 S.W.3d 564, 567-68 (Mo. banc 2000). Rule 51.10 requires the court to which an action is transferred to treat the action “as if it had originated in the receiving court.” Accordingly, section 476.410 and Rule 51.10 required the circuit court of Cape Girar-deau County to treat Nicholson’s motion as if it were timely filed on January 6, 2003.

The state attempts to avoid this conclusion by arguing that Rule 51.10 is inapplicable because it is contrary to the mandatory filing periods of Rule 29.15. Rules of civil procedure apply to Rule 29.15 motions “insofar as applicable.” Rule 29.15(a). To determine whether a rule of civil procedure is applicable to a Rule 29.15 motion, the court must inquire as to whether the rule of procedure “enhances, conflicts with, or is of neutral consequence to the purposes of’ Rule 29.15. Thomas v. State, 808 S.W.2d 364, 366 (Mo. banc 1991).

Rule 29.15 is designed to avoid “delay in the processing of prisoners’ claims and prevent the litigation of stale claims.” Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). Applying Rule 51.10 does not conflict with the Rule 29.15 filing periods because it simply allows review of a motion filed within the Rule 29.15 filing periods but filed in an incorrect court. A Rule 29.15 motion, whether filed in a proper or an improper court, is still considered untimely if filed after the filing period expired. Rule 51.10 applies to Nicholson’s motion.

The judgment is reversed, and the case is remanded.

WHITE, C.J., WOLFF, STITH, PRICE and LIMBAUGH, JJ., and HARDWICK, Sp.J., concur.

RUSSELL, J., not participating.

      . In addition to the mechanical application of statutes and procedural rules, this conclusion is further supported by the practical implications of holding otherwise. An incarcerated person seeking post-conviction relief must prepare and file his or her motion only "with such help as he can obtain within the prison walls or the prison system.” Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). It would be patently unfair to prohibit incarcerated, pro se litigants from availing themselves of section 476.410 and Rule 51.10 while permitting other civil litigants to have their cases transferred to an appropriate venue. Given the facts of this case, there is no legal or just basis for holding Mr. Nicholson to a higher standard of legal competence than that of experienced attorneys representing clients in other civil matters.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Helen A. SEVERS, Appellant.
    No. ED 83381.
    Missouri Court of Appeals, Eastern District, Division One.
    June 15, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 29, 2004.
    Case Transferred to Supreme Court Aug. 24, 2004.
    Case Retransferred to Court of Appeals Dec. 21, 2004.
    Original Opinion Reinstated Jan. 12, 2005.

      Nancy A. McKerrow, Columbia, MO, for appellant.
    Andrea Kaye Spillars, Charnette D. Douglass, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., ROBERT G. DOWD, JR., J., and MARY R. RUSSELL, J.
   ORDER

PER CURIAM.

Helen A. Severs (“Defendant”) appeals from the judgment entered on a jury verdict convicting her of conspiracy for participating in a plan to kill her granddaughter’s husband. The jury recommended that Defendant receive five years with suspended imposition of sentence. The court sentenced her to five years at the department of corrections. In her sole point on appeal, she argues that the jury’s verdict was inconsistent on its face, and that the trial court erred by accepting it. She does not challenge the sufficiency of the evidence. We find no error and affirm.

We have reviewed the briefs of the parties and the record on appeal and find that the trial court did not err in accepting the jury’s verdict. A written opinion reciting the facts and restating the law would have no jurisprudential value. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

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


author: ROBERT G. ULRICH, Judge.

text:
    STATE of Missouri, Respondent, v. Steven C. BOTTS, Appellant.
    No. WD 62767.
    Missouri Court of Appeals, Western District.
    Oct. 26, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2004.

      Kent Denzel, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty Gen., Deborah Daniels, Andrea K. Spillars, Leslie E. McNamara, Jefferson City, for Respondent.
    Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and EDWIN H. SMITH, JJ.
   ROBERT G. ULRICH, Judge.

Steven C. Botts appeals his conviction following a jury trial of possession of a controlled substance with the intent to distribute, section 195.211, RSMo 2000. He was sentenced as a prior and persistent offender to twenty years imprisonment. Mr. Botts asserts three points on appeal. He claims that (1) the State failed to prove beyond a reasonable doubt that he possessed the marijuana found in the master bedroom during the search of his residence, (2) the trial court committed plain error in permitting the chief of police of Eldon to testify that a confidential informant told him that Mr. Botts was selling marijuana from his home, where he kept the controlled substance, and in allowing a law enforcement officer to state that a person present at the home of Mr. Botts when the search was conducted told him that he did not live there, and (3) the trial court abused its discretion in refusing to allow him to cross examine a law enforcement officer about whether he contacted the officer after the incident and whether the officer asked him to make drug buys for him.

The judgment of conviction is reversed.

Trial Evidence Favorable to the Verdict

Eldon Chief of Police Bob Hurtubise received information on May 6, 2002, that Mr. Botts was selling marijuana from his residence and that he maintained a large quantity of the controlled substance there. Chief Hurtubise obtained a search warrant and with two Eldon- police officers and Jonathan Lawrence, then a law enforcement officer narcotics investigator with the Lake [Ozark] Area Narcotics Enforcement Group, executed the warrant the same - afternoon. Mr. Botts resided in a trailer located within Eldon. The principal entrance to the trailer provided ingress to the living room, with the contiguous kitchen area identified as being to the north of the living room. A hallway permitted access to the rear of the trailer to the south where the large bedroom was located. A second access door to the trailer was located in the master bedroom. The hallway between the living room/kitchen area and the master bedroom provided access, to two other rooms and to the single bathroom. One of the rooms served as a bedroom for Mr. Botts’ fourteen-year-old daughter and her female cousin who was residing with Mr. Botts and his daughter when the warrant was executed. The second room served as a laundry room and was also used to store items.

Four law enforcement officers executed the search of the trader where Mr. Botts lived on May 6, 2002. Chief Hurtubise and Jonathan Lawrence were the State’s law enforcement witnesses. Their testimony was that when the law enforcement officers knocked at the entrance to the trailer, Mr. Botts opened the door to permit their entry. Which law enforcement officer first entered the trailer and when the remainder of the officers followed are confusing from the record. Officer Lawrence testified that when he entered the trailer, he looked down the hallway of the trailer and observed a man, necessarily Charlie Noland, on the bed in the master bedroom. Chief Hurtubise testified that after he entered, he observed Charlie No-land- either standing or sitting on the couch in the living room. Because the testimony of the two state’s witnesses may conflict as to Mr. Noland’s location when the officers entered the trailer, Officer Lawrence’s testimony about where he saw Mr. Noland upon his entry into the trailer is not favorable to the verdict and is rejected. Significant, however, is that Mr. Noland was in the trailer. Officer Lawrence testified that Charlie Noland told him that he did not live in the trailer. Mr. Botts’ daughter and niece were in the bathroom when the law enforcement officers entered the trailer, and his daughter was taking a bath. The two girls were ushered into their bedroom to change, after which, all four persons remained' in the living room with Chief Hurtubise while the other officers conducted the search.

A large plastic bag was found in the master bedroom that contained six other plastic bags. Four of the six smaller bags contained marijuana, all of which weighed 161.87 grams. Syringes were found in a black bag located under the bed in the master bedroom and a wooden box containing plant seeds was also found on a television stand in the same bedroom. The chemist did not testify about these items. Clothing was observed in the master bedroom that appeared to belong to a man. A smaller bag containing what may have been marijuana was found outside the trailer window of the bedroom Mr. Botts’ daughter and her cousin occupied, but the drug chemist who testified for the prosecution did not testify about this substance either.

Mr. Botts was charged by amended information with possession of a controlled substance with intent to distribute. Following a jury trial, Mr. Botts was convicted of the charge and sentenced as a prior and persistent offender to twenty years imprisonment. This appeal followed.

Point One

Mr. Botts claims as his first point on appeal that the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence because the evidence was insufficient to prove beyond a reasonable doubt that he possessed the marijuana found in the residence. He asserts that the marijuana was located in the room used by Mr. Noland and that the evidence failed to prove that he knew of its presence and that he exercised control over it.

Standard of Review

In considering a challenge to the sufficiency of the evidence, the reviewing authority accepts as true all evidence and its reasonable inferences in a light most favorable to the verdict and rejects all contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993) (citation omitted). A determination is made whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt, not whether the verdict was against the weight of the evidence. State v. Smith, 944 S.W.2d 901, 916 (Mo. banc), cert. denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997); State v. Goddard, 34 S.W.3d 436, 438 (Mo.App. W.D.2000). This same standard of review applies when reviewing a motion for a judgment of acquittal. Goddard, 34 S.W.3d at 438.

Discussion

The elements of the offense of possession of marijuana with intent to distribute, section 195.211, RSMo 2000, require that the State prove that Mr. Botts possessed more than five grams of marijuana and that he knew of its presence and illegal nature. § 195.211, RSMo 2000; State v. Barber, 635 S.W.2d 342, 343 (Mo. 1982). To sustain a conviction for possession of a controlled substance, the State must prove that Mr. Botts knowingly and intentionally possessed the proscribed substance. Conscious, intentional possession, either actual or constructive, must be established. Barber, 635 S.W.2d at 343. The State must also show that the defendant was aware of the presence and nature of the substances in question, and both possession and knowledge may be proved by circumstantial evidence. Id. If actual possession has not been shown, “constructive possession will suffice when other facts buttress an inference of defendant’s knowledge of the presence of the controlled substance.” Id. (quoting State v. West, 559 S.W.2d 282, 284 (Mo.App.1977)). Although exclusive control of the premises where controlled substances are found raises an inference of possession and control of those substances, if the premises are jointly controlled, some further evidence is necessary to connect the accused with the drugs. Id. at 343-44. “The presence of large quantities of a controlled substance may buttress such an inference if consistent with the totality of circumstances.” Id. at 344.

Mr. Botts did not have actual possession of the contraband marijuana when law enforcement authorities found the substance on May 6, 2002. Thus, to convict Mr. Botts of the crime of possessing the marijuana for the purpose of distributing it, the prosecution must have presented sufficient evidence for the jury to find that he constructively possessed the substance. Constructive possession may be shown by circumstantial evidence. State v. Booth, 11 S.W.3d 887, 891 (Mo.App. S.D.2000)(quoting State v. Powell, 973 S.W.2d 556, 558 (Mo.App. W.D.1998)). The question, therefore, is whether sufficient evidence was presented by which a reasonable juror could find beyond a reasonable doubt that Mr. Botts constructively possessed the marijuana found in the master bedroom during the May 6, 2002, search of the trailer. To prove constructive possession, however, the State had to prove that he consciously and intentionally possessed the substance.

The Supreme Court of Missouri addressed constructive possession in State v. Purlee, 839 S.W.2d 584, 588 (Mo. banc 1992), and stated:

[PJroof of constructive possession requires, at a minimum, evidence that defendant had access to and control over the premises where the substance was found. Defendant’s exclusive control of the premises is enough to raise an inference of possession and control of the substance. Joint control of the premises, however, requires some further evidence or admission connecting the accused with the illegal drugs. It follows that merely being a guest in the premises of another where drugs are found is not sufficient to sustain a conviction for possession of controlled substances. The State must present some incriminating circumstance that implies that the accused knew of the presence of the drugs and that the same were under his control. (Internal citations omitted)

The additional evidence required when joint access by several persons to the location where contraband drugs are found includes such things as: “routine access to an area where controlled substances are found; the presence of large quantities of the substances at the scene where the accused is arrested; conduct and statement made by the accused, and a mixture of defendant’s personal belongings with the substance.” (Internal citations omitted). State v. Buford, 907 S.W.2d 316, 318 (Mo.App. E.D.1995).

In Buford, the defendant was charged with possessing cocaine (count 1), unlawful use of paraphernalia (count 2), and possession of over 35 grams of marijuana (count 3). The court stated that because the defendant did not have actual possession of any of the items for which he was charged, the State was compelled to prove constructive possession in each of the three counts. Id. at 318-19. The court noted that the defendant was the only person in the apartment when the search warrant was executed that produced the illegal substances for which the defendant was charged. He had routine access to the bedroom where the cocaine was found. The bed in the bedroom appeared as if the defendant had been laying on it, and a TV was turned on. The defendant acknowledged sleeping in the room where the cocaine was found. He admitted to paying rent or at least half the rent for the apartment and the telephone service. His personal belongings were mingled with the cocaine that was found. Various documents with his name on them, including a work I.D. badge, a sportsmanship award, and a receipt were found on the dresser with the cocaine. Id. at 318. The court determined that sufficient evidence was presented from which the trier of fact could determine that the defendant constructively possessed the cocaine. Id.

The court in Buford determined that sufficient evidence was presented to prove constructive possession of the drug paraphernalia charge, too. The drug paraphernalia were found in the sink during the search. The court noted that the defendant had routine access to the kitchen. Id. at 318-19. He acknowledged the presence of the scale under the sink. He had routine access to the living room where agents seized a razor blade with a small piece of crack cocaine and a glass vial. His personal items were mixed with the drug paraphernalia. A cardboard, box with clothes on top of it and a glass test tube with crack cocaine residue in it were found in his bedroom closet. He told agents that the test tubes were used to cook crack cocaine. Id. at 319.

Finally, the defendant in Buford was found by the court to have constructively possessed the marijuana found as a result of the search. Although the marijuana was found in a spare room in which a TV was located, the court determined that evidence was presented that the defendant was the only person living in the apartment. He was asked how to contact the person he claimed shared the apartment with him, and he declined to provide the information saying, “It’s my apartment. The drugs were found in my house. And there is no need to, you know, hassle him.” Id. The court noted that the admission was sufficient by itself to support the conviction regarding the marijuana. Id.

Mr. Botts’ first point on appeal includes the assertion that the evidence showed that the contraband was found in the master bedroom, which was used by Mr. No-land, and the State failed to prove that he, Mr. Botts, possessed it. Mr. Botts claim is based in part on the testimony of his daughter that Mr. Noland resided in the trailer and occupied the master bedroom. Testimony from Mr. Botts’ daughter was that Mr. Noland was the adult brother of Mr. Botts’ best friend, who had been killed circa 1997. She testified that Mr. Noland was residing with the Botts and paying Mr. Botts rent when the search occurred. He had moved into the trailer a week or two before the search, and he occupied the master bedroom, she said. She said that her father kept his clothes in the laundry/storage room and slept in the living room on a mattress that was placed on his daughter’s bed in the daytime. She testified that even before Mr. Noland moved into the trailer, her father slept in the living room because the master bedroom was hot and an air conditioner kept the living room cool. Mr. Botts’ daughter also testified that Mr. Noland routinely locked the master bedroom door, and he had access to the outside through another door that allowed entry directly into the master bedroom. She also testified that Mr. No-land moved from the trailer the day after Mr. Botts’ arrest.

Examining the evidence in the light most favorable to the prosecution requires rejecting the testimony of Mr. Botts’ daughter that Mr. Noland lived in the master bedroom as well as Officer Lawrence’s testimony that he observed Charlie Noland alone on the bed in the master bedroom, the room in which the marijuana was found, when he entered the trailer. Even disregarding this evidence, however, undisputedly Mr. Noland was present in the trailer when the search occurred, as were Mr. Botts’ daughter and her cousin. Thus, three people were present in addition to Mr. Botts. Unlike Buford, Mr. Botts was not the only person living in or occupying the apartment. Joint control of the premises requires additional evidence or admission connecting the accused with the illegal drugs. Purlee, 839 S.W.2d at 588. The State must present some incriminating circumstance that implies that the accused knew of the presence of the drugs and that the same were under his control. Id. Thus, something more than Mr. Botts’ ownership of the trailer and his presence in the living room of the trailer when the search occurred was required to prove that he constructively possessed the contraband substance found in the master bedroom.

The evidence upon which the State relies for sustaining the conviction is that men’s clothing was found in the master bedroom, Mr. Botts owned the trailer, and he was in the living room of the trailer when the controlled substance was found. Neither witness ever saw Mr. Botts in the master bedroom. To prove that Mr. Botts had constructive possession of the controlled substance found in the master bedroom, the State had to offer evidence that he knew of the presence of the drugs and that the same were under his control. Id. Mr. Botts’ ownership of the trailer, the presence of men’s clothing in the master bedroom and his presence in the living room, under the circumstances of this case, are insufficient to reasonably infer that the men’s clothing found in the master bedroom was his. No evidence was presented to demonstrate that the clothing was Mr. Botts’, not even that the size of the clothing was the same worn by Mr. Botts. Neither were personal objects, writings, documents, mail, or any other items that may have been located in the room, which could be shown to belong to Mr. Botts, were offered as evidence that Mr. Botts accessed the master bedroom. Furthermore, the amount of controlled substance (161.87 grams) was not so great that one could reasonably infer from its mere presence that Mr. Botts would know of its presence and, thus, constitute a factor in determining constructive possession of it.

The constructive possession rule requires more evidence than was presented to prove beyond a reasonable doubt that Mr. Botts knowingly possessed the contraband substance constituting the basis for the charge. Points two and three need not be addressed. The judgment of the trial court is reversed.

RONALD R. HOLLIGER, P.J. and EDWIN H. SMITH, J. concur.


text:
    STATE of Missouri, Appellant, v. Eddy G. NICHOLS, Respondent.
    No. ED 84975.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 7, 2004.
    Eliza F. Williams, Union, MO, for appellant.
    Terry J. Flanagan, John W. Peel, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K HOFF, J.
   ORDER

PER CURIAM.

The State appeals from the trial court’s order granting Eddy G. Nichols’s motion to suppress evidence and statements seized by police at the time of his arrest. We affirm the trial court’s ruling.

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


text:
    Lisa GRAESSLE-DUDENHOEFFER, Respondent, v. Patrick DUDENHOEFFER, Appellant.
    No. ED 83942.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 14, 2004.
    Benecia Baker-Lovorsi, St. Charles, MO, for appellant.
    Jane E. Tomich, St. Charles, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Patrick Dudenhoeffer appeals the judgment dissolving his marriage to Lisa Graessle-Dudenhoeffer. We have reviewed the briefs of the parties and the record on appeal and find no error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Ronald L. KRETTLER, Appellant, v. STATE of Missouri, Respondent.
    No. ED 83857.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 14, 2004.
    Maleaner Harvey, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., WILLIAM H. CRANDALL, JR., J., and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

Ronald L. Krettler appeals the judgment denying, without an evidentiary hearing, his Rule 24.035 motion for post-conviction relief. He contends the trial court lacked jurisdiction to accept his guilty plea because he properly invoked the Uniform Mandatory Disposition of De-tainers Law (UMDDL), sections 217.450-217.485, RSMo 2000, and the State failed to bring the criminal charge against him to trial within the statutory time limit.

Having reviewed the briefs of the parties and the record on appeal, we conclude the motion court did not clearly err. Rule 24.035(k). An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Hashim K. MOHAMMAD, Appellant.
    No. ED 83707.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2004.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Leslie E. McNamara, Asst. Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Hashim Mohammad (Defendant) appeals from the judgment upon his convictions by a jury for murder in the first degree, Section 565.020, RSMo 2000, and armed criminal action, Section 571.015, for which Defendant was sentenced to concurrent sentences of life imprisonment without the possibility of probation or parole and life imprisonment, respectively. On appeal, Defendant argues the trial court abused its discretion in (1) denying his requests for a continuance and for mistrial due to the unavailability of witness Brad Morrow (Morrow), and (2) admitting evidence that Defendant stated to police right after his arrest “the police probably killed the boy because the police are always covering murders up.” We affirm.

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


author: PATRICIA BRECKENRIDGE, Judge.

text:
    Ed BULLMASTER d/b/a Bullmaster Excavating & Demolition, Respondent, v. Michael G. KRUEGER and Robin D. Krueger, Appellants, Environmental Response & Technologies, Inc., Defendant, Fides Capital, L.L.C., Appellant.
    No. WD 62780.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.

      Arthur D. Peppard, Memphis, MO, for appellants Kruegers.
    Charles G. Larson, St. Joseph, MO, for appellant Fide Capital, L.L.C.
    Jere L. Loyd, St. Joseph, MO, for respondent.
    Before BRECKENRIDGE, P.J., HOWARD and SMART, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Ed Bullmaster, d/b/a Bullmaster Excavating & Demolition, sued Michael Krueger and Robin Krueger to enforce a mechanic’s lien on property now owned by the Kruegers. Before the Krueger’s purchased the property, Constance Miller owned and operated a service station on the property. After the station was closed, Ms. Miller contracted with Environmental Response & Technologies, Inc., for the removal of the underground storage tanks located on the property. Environmental subcontracted the excavation and removal of the tanks to Mr. Bullmas-ter. The mechanic’s lien Mr. Bullmaster sought to enforce arose from excavation work Mr. Bullmaster performed on the property as a subcontractor.

The Kruegers filed a counterclaim in interpleader requesting that they be allowed to deposit $55,269 in funds they received from the state for payment on a claim presented to the Missouri Petroleum Storage Tank Insurance Fund (PSTIF) for removal of the underground tanks. In their counterclaim for interpleader, the Kruegers named Mr. Bullmaster, Environmental, and Fides Capital, LLC, as defendants. Fides’ claim arose from a security interest in and an assignment of the accounts receivable of Environmental.

Following a bench trial, the trial court entered a default judgment for $81,328, plus interest, in favor of Mr. Bullmaster and against Environmental. The trial court also entered judgment against the Kruegers and in favor of Mr. Bullmaster on Mr. Bullmaster’s petition to enforce his mechanic’s lien, specifically entering a special hen against the Kruegers’ property. The trial court also entered judgment in favor of Mr. Bullmaster on the Krueger’s interpleader action and ordered the circuit clerk to disperse the $55,269 PSTIF funds to Mr. Bullmaster.

In their joint brief on appeal, the Krueg-ers and Fides assert that the trial court erred in failing to dismiss Mr. Bullmaster’s petition to enforce mechanic’s hen because Mr. Bullmaster failed to give notice to the property owner, as required by section 429.100, RSMo 2000, and in entering judgment awarding the interpled funds to Mr. Bullmaster. The Kruegers and Fides further contend that the trial court erred in denying the Kruegers’ motion to dismiss because the mechanic’s hen Mr. Bullmas-ter seeks to enforce did not contain a just and true account of the work performed by Mr. Bullmaster. Because Mr. Bullmaster failed to give notice to Ms. Miller, who owned the property on the date the work commenced, as required by section 429.100, the trial court lacked jurisdiction to impose a special hen in favor of Mr. Bullmaster and against the Kruegers’ property. Therefore, the case is remanded with directions to sustain the Kruegers’ motion to dismiss. Furthermore, because neither Mr. Bullmaster nor Fides has established a vahd claim to the funds deposited by the Kruegers with the circuit court, the case is remanded for retrial to determine the proper disposition of the disputed funds.

Factual and Procedural Background

In 1999, Constance Miller was the owner of DX Service Station in Gower, which contained underground petroleum storage tanks. After the station was closed, it became necessary to remove the underground storage tanks. Ms. Miller contracted with Environmental to remove and dispose of the underground storage tanks, to test the soil and remove and dispose of any contaminated soil, and to provide clean backfill as needed. Environmental, owned by Martin Altman, was the general contractor on the project. Part of the cost of the project was to be paid by the state through the PSTIF. Environmental subcontracted with Mr. Bullmaster to perform excavation of the site, removal of the tanks, hauling the contaminated soil, and providing clean backfill. Mr. Bullmaster performed these tasks in November 1999 and March 2000.

In July 2000, Ms. Miller conveyed the property to the Kruegers. Mr. Bullmaster demanded payment from Environmental and the Kruegers for $81,328, the alleged balance owed under his contract with Environmental for the work he performed in excavating the underground storage tanks. After failing to receive payment, on September 4, 2000, Mr. Bullmaster served the Kruegers with notice of his intent to file a mechanic’s lien. Mr. Bullmaster did not serve notice on Ms. Miller. On September 20, 2000, Mr. Bullmaster filed a mechanic’s lien affidavit, which included an account of the amount due, and claimed a lien upon the real estate owned by the Kruegers. Thereafter, Mr. Bullmaster filed a petition to enforce the mechanic’s lien naming the Kruegers and Environmental as defendants.

On July 3, 2001, the trial court entered an interlocutory default judgment against Environmental for $81,328. On August 13, 2002, the Kruegers filed a counterclaim in interpleader naming Environmental and Mr. Bullmaster as defendants and Fides as a third-party defendant. The Kruegers sought to interpled $55,269 they received from the PSTIF. The Kruegers alleged that Fides claimed an interest in the funds through a judgment it held against Mr. Altman and Environmental. Fides answered claiming a perfected security interest in and an assignment of the accounts receivable of Environmental, represented by the interpled funds. The trial court subsequently entered an order authorizing the Kruegers to deposit the funds into the circuit clerk’s office.

The trial court held a bench trial on January 17, 2003. At the beginning of trial, the Kruegers moved for judgment on the pleadings based on Mr. Bullmaster’s failure to provide notice to Ms. Miller, the owner of the property at the time Mr. Bullmaster commenced work on the property, as required by section 429.100. The trial court denied the Krueger’s motion. At the conclusion of Mr. Bullmaster’s case, the Kruegers again moved to dismiss Mr. Bullmaster’s petition on the grounds that (1) Mr. Bullmaster failed to provide notice to Ms. Miller, (2) Mr. Bullmaster’s lien failed to contain a just and true account of the work allegedly performed, and (3) Mr. Bullmaster failed to include all contracting parties, i.e., Ms. Miller, in the action. The trial court again denied the Kruegers’ motion.

On March 20, 2003, the trial court entered its final judgment. Specifically, the trial court entered judgment in favor of Mr. Bullmaster and against Environmental for $81,328 plus interest, and entered judgment in favor of Mr. Bullmaster for a mechanic’s lien against the real estate owned by the Kruegers. In addition, the trial court entered judgment in favor of Mr. Bullmaster on the Kruegers’ counterclaim for interpleader, awarded the deposited funds to Mr. Bullmaster, and ordered the circuit clerk to disperse the funds to Mr. Bullmaster in partial satisfaction of the judgment against Environmental and the Kruegers’ real estate. Following denial of both the Kruegers’ and Fides’ motions for new trial, the Kruegers and Fides filed this appeal.

Standard of Review

When reviewing a court-tried mechanic’s lien case, an appellate court “will sustain the judgment of the trial court ‘unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.’ ” Gauzy Excavating & Grading Co. v. Kersten Homes, Inc., 934 S.W.2d 303, 304 (Mo. banc 1996) (quoting Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

Mechanic’s Lien Invalid Because of Improper Notice

In their first point, the Kruegers and Fides contend that the trial court erred in failing to dismiss Mr. Bullmaster’s petition because the trial court lacked subject matter jurisdiction to impose a mechanic’s lien. Specifically, the Kruegers and Fides argue that under section 429.100, Mr. Bullmaster was required to serve notice of his intent to file a mechanic’s lien with the owner of the property at least ten days prior to filing his mechanic’s lien affidavit. The Kruegers and Fides assert that the owner to which Mr. Bull-master was required to give notice was Ms. Miller, not the Kruegers. This is so, argue the Kruegers and Fides, because Ms. Miller was the owner of the property at the time Mr. Bullmaster performed the work. The Kruegers and Fides contend that Mr. Bullmaster was not required to provide the Kruegers with notice as subsequent purchasers of the property and, therefore, because Mr. Bullmaster conceded that he did not provide notice to Ms. Miller, the trial court erred in failing to dismiss Mr. Bullmaster’s petition.

“Actions to establish and enforce a mechanic’s lien are purely statutory in nature and the averments must plead and the evidence must prove the statutory elements before recovery is permitted.” Kenny’s Tile & Floor Covering, Inc. v. Curry, 681 S.W.2d 461, 472 (Mo.App.1984). Proper notice is a condition precedent to the creation, existence or validity of a mechanic’s lien. Id. Under section 429.100, a subcontractor “shall give ten days’ notice before the filing of the lien, as herein required, to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due.” Strict compliance with the notice provisions contained in the mechanic’s lien statutes is required. Gauzy Excavating & Grading, 934 S.W.2d at 305.

Mr. Bullmaster maintains that he provided proper notice of his intent to file a mechanic’s lien by notifying the Kruegers, the current owners of the property. Under section 429.100, however, notice must be given by a subcontractor, “if it is required at all, only to the person who was the owner at the time the work was done or materials furnished.” BCI Corp. v. Charlebois Constr. Co., 673 S.W.2d 774, 776 (Mo. banc 1984) (interpreting section 429.100, which sets forth the notice requirement for a subcontractor). Moreover, “[njotice is not required to persons who subsequently become owners.” Id. See also Vasquez v. Village Ctr., Inc., 362 S.W.2d 588, 596 (Mo.1962) (“The lien of a mechanic attaches at the time of the commencement of the work. Consequently, the owner referred to in the statute is the owner on the date the work was commenced.” (citations omitted)); Dave Kolb Grading, Inc. v. Lieberman Corp., 837 S.W.2d 924, 936 (Mo.App.1992) (“The ‘owner’ is defined as the person who has legal title to the real estate on the date the work commenced.”).

Here, Mr. BuIImaster’s petition alleged that he performed work on the property at issue in March 2⅞00. At that time, it is undisputed that Ms. Miller was the owner of the property. fae Kruegers did not purchase the property until July 2000. Therefore, before filing his lien, Mr. Bull-master was required to provide notice to Ms. Miller, which Mr. BAnaster conceded he did not do. Consequently, the trial court lacked jurisdiction to impose a special lien in favor of Mr. Bullmaster and against the Kruegers’ property. It follows that the trial court erred in denying the Kruegers’ motion to dismiss Mr. Bullmas-ter’s petition for enforcement of mechanic’s ken. Because disposition of the parties’ first point resohes the question of the validity of the mechanic’s lien, this court need not consider appellants’ second point, which alleges that the trial court erred in denying the Kruegers’ motion to dismiss because the mechanic’s hen Mr. Bullmas-ter seeks to enforce did not contain a just and true account of the work performed by Mr. Bullmaster.

Interpleader

In their third point on appeal, the Kruegers and Fides allege that the trial court erred in granting judgment in favor of Mr. Bullmaster on the Kruegers’ counterclaim for interpleader. In particular, the Kruegers and Fides contend that the trial court erred in finding that Mr. Bull-master’s mechanic’s lien provided Mr. Bullmaster with an interest in the funds the Kruegers deposited with the circuit clerk because such a result exceeds the scope of available relief under Chapter 429, which governs statutory liens. In addition, the Kruegers and Fides argue that Mr. Bullmaster failed to offer any evidence outside the context of the mechanic’s lien that would demonstrate an interest in the deposited funds.

Before reaching the merits of the Kruegers and Fides point, however, this court must address the procedural issues surrounding an interpleader action. “[A]n interpleader action involves two successive litigations, one between the parties seeking interpleader and the rival claimants on the issue of the propriety of inter-pleader, and a second between the rival claimants on their conflicting claims.” Amwest Sur. Ins. Co. v. Stamatiou, 996 S.W.2d 708, 712 (Mo.App.1999). “In the first phase, the court determines whether the requirements for interpleader have been met.” Id. In particular, the first phase “is a litigation between the party seeking interpleader and the rival claimants, and involves a determination of whether interpleader is appropriate for the situation.” State ex rel. Phillips v. LePage, 67 S.W.3d 690, 693 (Mo.App.2002). “If the requirements are met, and if the stakeholder has paid the money alleged to be owing into court and all counterclaims by defendants are disposed of by the court, the court issues a judgment sustaining the bill of interpleader and discharging the stakeholder from further liability.” Amwest, 996 S.W.2d at 712. Then, in the second phase, the claimants to the money litigate their claims between themselves. Id.

In this case, even though the trial court entered an order authorizing the Kruegers to deposit the disputed funds into the circuit clerk’s office, which the Kruegers did, the court never ruled on whether inter-pleader is appropriate for this situation. Likewise, the trial court never discharged the Kruegers from liability regarding the deposited funds, nor did the court dismiss the Kruegers from the interpleader action. Consequently, the trial court never expressly ruled on the propriety of inter-pleader in this ease. In ordering that the deposited funds be applied in partial satisfaction of the judgment against the Krueg-ers’ real estate, however, the trial court’s judgment effectively found that the Krueg-ers did maintain an interest in the disputed funds. Therefore, the trial court’s final judgment in this case can be properly viewed as finding that interpleader was inappropriate in this case. Such a finding is not inconsistent with the trial court’s failure to dismiss the Kruegers from the action.

Based on this court’s disposition of point one, the question whether a mechanic’s lien would provide Mr. Bullmaster with any interest in the funds the Kruegers deposited with the circuit clerk need not be considered. Because Mr. Bullmaster failed to give proper notice to Ms. Miller, Mr. Bullmaster’s mechanic’s hen is invalid. Therefore, the trial court clearly erred in awarding the deposited funds to Mr. Bull-master based on Mr. Bullmaster’s mechanic’s hen. Moreover, Mr. Bullmaster offered no other evidence demonstrating an interest in the deposited funds.

Pides, however, also has failed to demonstrate any interest in the deposited funds. While Fides did demonstrate that Environmental assigned its interest in the “Miller’s DX project” to Fides, that Fides has judgments against Environmental, and that Fides has a secured interest in Environmental’s accounts receivable, Fides presented no evidence demonstrating that the Kruegers assumed Ms. Miller’s contractual obligations to Environmental. Consequently, Fides failed to prove that any of its interests related to Environmental extends to the funds received by the Kruegers from the insurance fund. Accordingly, the case must be remanded to the trial court for further proceedings to determine the proper disposition of the deposited funds. Moreover, because the Kruegers have disclaimed any interest in the deposited funds, deposited the funds into the court, and all claims against the Kruegers have now been resolved, inter-pleader is appropriate. Amwest, 996 S.W.2d at 712. Therefore, on remand, the trial court is instructed to issue a judgment sustaining the Kruegers’ bill of inter-pleader and discharging the Kruegers from further liability. Id.

Conclusion

Because Mr. Bullmaster failed to provide notice of his intent to file a mechanic’s lien to Ms. Miller, the owner of the property at the time Mr. Bullmaster commenced work on the subject property, the trial court lacked jurisdiction to impose a special hen against the Kruegers’ property. Therefore, the portion of the judgment imposing a special lien against the Krueg-ers’ property is reversed and the case is remanded to the trial court with directions to sustain the Kruegers’ motion to dismiss. In addition, the trial court’s judgment in favor of Mr. Bullmaster on the Kruegers’ counterclaim for interpleder is reversed and the cause is remanded for further proceedings consistent with this opinion. The judgment is affirmed in ah other respects.

All concur.

      . In an effort to limit the environmental and public health hazards surrounding leaking underground storage tanks, the Environmental Protection Agency and the State of Missouri established rules and regulations holding owners and operators of such tanks financially responsible for leaks. See section 319.100 et seq. To provide funds to assist with cleanup of contamination caused by leaking tanks, the state created the Underground Storage Tank Insurance Fund. See section 319.129. Owners and operators of petroleum storage tanks are eligible' for participation in the fund to partially meet the financial responsibility of cleanup. The name of the special trust fund was subsequently changed to the Petroleum Storage Tank Insurance Fund. Section 319.129.1.

      . All statutory references are to the Revised Statutes of Missouri 2000.

      . Environmental is not a party to the appeal.

      . The Kruegers and Fides incorrectly challenge the trial court's subject matter jurisdiction. "[J]urisdiction of a court to adjudicate a controversy rests on three essential elements: (1) jurisdiction of the subject matter; (2) jurisdiction of the res or the parties; [and] (3) ... jurisdiction to render the particular judgment in the particular case.” State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52, 57 (banc 1941). "Subject matter jurisdiction is the court's authority to decide a defined class of cases.” Lake Wauwanoka, Inc. v. Spain, 622 S.W.2d 309, 314 (Mo.App.1981). The third class of jurisdiction, however, "jurisdiction to render the particular judgment in the particular case (sometimes called 'competency'), partakes of the character of one or the other of the first two.” Flynn, 154 S.W.2d at 57. The court has no jurisdiction (or competency) to render a particular judgment in a particular case, for example, if statutory conditions have not been complied with, or the petition fails to plead a claim upon which relief can be granted. Id.; Lake Wauwanoka, 622 S.W.2d at 314-15. See also Cullen v. Dir. of Revenue, 804 S.W.2d 749, 750 (Mo. banc 1991) (finding that trial court lacked jurisdiction because appellant failed to follow statutory deadline in filing petition for review). In this case, because the Kruegers and Fides allege that Mr. Bullmaster failed to satisfy statutory notice requirements, they challenge the trial court’s jurisdiction to render a particular judgment in this particular case, or the trial court’s competency to enter judgment, not the trial court’s subject matter jurisdiction.


text:
    STATE of Missouri, Respondent, v. Eric L. JONES, Appellant.
    No. WD 62229.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.
    Ruth Sanders, Appellate Defender, Kansas City, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before: SMITH, C.J., ULRICH and SPINDEN, JJ.
   Order

PER CURIAM.

Erie Jones appeals the judgment of his conviction, after a jury trial in the Circuit Court of Jackson County, of domestic assault in the second degree, § 565.073. As a result of his conviction, he was sentenced as a prior and persistent offender, § 558.016, to a term of imprisonment of eight years in the Missouri Department of Corrections.

The appellant raises two points on appeal. In Point I, he claims that the trial court erred in admitting at trial, over his objection, evidence that he had previously assaulted the victim by slapping her because it was evidence of uncharged crimes that was neither logically nor legally relevant. In Point II, he claims that the trial court erred in denying his motion to suppress and admitting at trial, over his objection, certain of the incriminating statements he made to the police because they were obtained in violation of his Fifth Amendment right to be free from self-incrimination.

We affirm pursuant to Rule 30.25(b).


author: THOMAS H. NEWTON, Judge.

text:
    Richard NUNN; Respondent Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Defendant, v. C.C. MIDWEST, Appellant.
    No. WD 64027.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.

      Elizabeth C. Carver, St. Louis, MO, for Appellant.

      John R. Stanley, Overland Park, KS, for Respondent.
    Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

Mr. Richard Nunn was a truck driver for C.C. Mid West. He was injured while making a delivery and claimed workers’ compensation benefits. C.C. Mid West asserted that he was not entitled to those benefits because he was an owner-operator of his truck and an independent contractor. The Labor and Industrial Relations Commission (Commission) found that Mr. Nunn was not an owner-operator and was an employee, not an independent contractor. Because he leased the truck, and used it under a lease-purchase agreement, we find that he did not own the truck. Also, under the right to control test, we find that Mr. Nunn was an employee rather than an independent contractor. Therefore, we affirm the Commission’s decision.

I. Factual AND Procedural Background

C.C. Mid West, Inc. is a for-hire or contract motor vehicle carrier operating under certificates issued by the federal Department of Transportation (DOT). C.C. Mid West is a wholly-owned subsidiary of Central Transport International, Inc., which is a wholly-owned subsidiary of CenTra, Inc.

Mr. Nunn is a truck driver, and on November 15, 2000, he met with C.C. Mid West’s Kansas City, Missouri, terminal manager, Mr. Patrick Hilke, to discuss driving for C.C. Mid West. Mr. Nunn claims that he completed employment applications at this meeting. C.C. Mid West maintains that he was being hired as an independent contractor. He actually only filled out a Contractor Data Sheet, which specifically stated that he “confirm[ed] that I am representing myself as an Independent Contractor.... I acknowledge that I am not applying for, nor, am I being offered employee status by this data sheet.” Mr. Hilke told Mr. Nunn that he needed to get a DOT drug screen and a physical, and told him what clinics were DOT certified.

During the November 15, 2000, meeting, Mr. Nunn told Mr. Hilke that he did not have a vehicle appropriate for the type of hauling that he would be doing for C.C. Md West. Just before applying with C.C. Mid West, Mr. Nunn had been an independent contractor/owner-operator truck driver for USF Distribution, but after he left USF someone else took over the payments on and ownership of his truck. Mr. Hilke informed Mr. Nunn about a truck leasing company called GLS Leasco, Inc., which might have a truck available for Mr. Nunn to lease-purchase. GLS Leasco is a wholly-owned subsidiary of CenTra, Inc. Mr. Nunn expressed interest in getting a truck from GLS Leasco, and a lease was arranged. The lease was sent to C.C. Mid West’s office in Kansas City for Mr. Nunn to sign and a copy of the lease was placed in Mr. Nunn’s file. C.C. Mid West maintains that Mr. Nunn could have gotten a truck from anywhere, and that Mr. Hilke simply made this suggestion because Mr. Nunn expressed a need for a truck. Mr. Nunn claims that he was given no choice in which truck he eventually received and that he never saw the truck until after the lease was signed on January 2, 2001. Because GLS Leasco did not have a truck available right away, C.C. Mid West arranged for Mr. Nunn to go to St. Louis to temporarily rent a truck. Once GLS Leasco had a truck for Mr. Nunn, C.C. Mid West arranged for him to go to Chicago to retrieve it.

On December 6, 2000, Mr. Nunn and C.C. Mid West entered into a Non-Exclusive Operating Agreement with Independent Contractor (Agreement). C.C. Mid West claims that this Agreement 1 specifically disclaims any employer-employee relationship. Mr. Nunn claims that he was being hired as an employee of C.C. Mid West and he did not read the Agreement before signing it. The Agreement states that C.C. Mid West is “Company” and Mr. Nunn is “Contractor” and a corporation. The Agreement then states that he owns the equipment described in Schedule A, which was the truck that he eventually leased from GLS Leasco, although he had not yet signed that lease when he signed the agreement. The first numbered paragraph of the Agreement was titled “Independent Contractor” and it stated:

Contractor shall furnish Contractor’s services as an Independent Contractor and not as an employee of Company or any subsidiary or affiliate of Company. Contractor and its employees or agents shall not be considered an agent, representative, associate, assignee or employee of Company at any time, for any purpose or reason whatsoever. Contractor, its employees, representatives, agents, assignees, associates, or affiliates (whomever has some relation with Contractor) have no power or authority to act for, represent, or bind Company or any subsidiary or affiliate of Company in any manner whatsoever. Contractor and its employees or agents are not entitled to any medical coverage, life insurance, participation in Company’s savings plan, and/or other benefits afforded to Company’s regular or irregular employees, or those of any subsidiary or affiliate of Company....

The Agreement also requires the Contractor not to engage in any business that conflicts with the Company’s interests. The Agreement states that it is non-exclusive with the Contractor, stating that the Company will, on a non-exclusive basis, tender to Contractor various loads of freight for pick-up, hauling, and delivery, but is not obligated to do so. The Agreement requires Contractor to furnish a vehicle, keep it in good operating condition, and pay for all maintenance. It states that Contractor has the sole right to hire and terminate all its employees and exercises all control over those employees, and that Company has no right to exercise any control or supervision over those employees except to the ultimate completed pickup or delivery. The Agreement can be terminated at Company’s sole and only discretion for any reason whatsoever. Either party can cancel with thirty days written notice and in the first ninety days of the Agreement the Company can cancel without any notice. With respect to workers’ compensation insurance, the Agreement states that:

It is further mutually understood and agreed by the parties that Contractor shall provide evidence for worker’s compensation insurance in effect covering all employees and agrees to hold Company harmless and indemnify it for and against any loss, cost or expense, including but not limited to, court costs and attorney’s fees, arising out of or with respect to injury to, or death of, including but not limited to, Contractor or any of its employees, agents, associates, representatives, or servants.

The Agreement also set out the rate of pay in an attached schedule: payment based on the weight of what was hauled and the mileage driven.

Mr. Nunn signed the Tractor Lease with GLS Leasco on January 2, 2001, receiving the truck mentioned in the Agreement. The lease states that unless the Lessee (Mr. Nunn) exercises his right-to-purchase option, “at all times during the term of the Lease, no title to Tractor shall vest in Lessee.” Lessee must also affix to the truck in a conspicuous place, decals or signs showing Lessor (GLS Leasco) as the owner and lessor of the truck. The lease requires Lessee to inform Lessor in writing of any subleases and if the truck will be used outside of Kansas or Missouri. The Lessee may not make any changes to the truck without prior written consent of the Lessor and the Lessee must keep the truck in good repair at his own expense through the duration of the lease, including bearing the entire risk of loss. The lease is called a lease-purchase agreement because Mr. Nunn had an option to purchase the truck:

Lessee shall, upon thirty (30) days prior written notice to Lessor, have the option to purchase Tractor from Lessor by paying to Lessor in cash the Stipulated Value as of the date of closing and title transfer.... Unless Lessee shall have purchase [sic] Tractor as provided herein, Tractor shall be returned to Lessor in accordance with Section 10 hereof.

And the Lessor has the right to cancel the lease upon seven days’ prior written notice to Lessee.

Mr. Nunn began driving for C.C. Mid West and on a typical day he would arrive at the C.C. Midwest terminal at 6:30 or 7:00 am. He would be given a list of stops for the day and his truck would be loaded with all the goods for delivery. Mr. Nunn claims that Mr. Hilke decided how to load the trucks, resulting in him setting out the route that would be followed. Mr. Hilke, on the other hand, claims that each truck driver determined how he wanted his truck loaded based on the deliveries for that day and the truck was loaded accordingly. C.C. Mid West had no policy requiring the drivers to call in during the day, but the drivers could call in if they wished to find out about any pick-ups while they were out or more deliveries at the terminal. The drivers were also not required to wear any uniforms, but they were encouraged to wear a uniform and would receive a bonus incentive for doing so. The drivers filled out daily worksheets tracking their deliveries for the day, including their time spent on each delivery. These worksheets were how the drivers invoiced C.C. Mid West and Mr. Hilke stated that the time portion was filled in only for billing the customer, which in no way influenced how the drivers were paid.

Mr. Nunn believed that he was not allowed to haul for any other companies and that he was required to report to C.C. Mid West every day and could not decline a haul unless there was someone else to cover it. C.C. Mid West maintains that Mr. Nunn was free to haul for anyone else and that he was always free to decide whether or not to accept a haul. C.C. Mid West points to various parts of the Agreement that say that it was non-exclusive. Regardless of what the rules were, Mr. Nunn did not haul for anyone else during the time that he hauled for C.C. Mid West and he did not turn down any jobs unless there was someone else to cover them.

On January 7, 2002, Mr. Nunn was making a delivery to Sally’s Beauty Supply Store. He claims that while unloading the trailer, a heavy box started to fall and he reached to grab it. After he caught the box, he immediately felt a sharp pain in his back and tingling down his legs. He advised Mr. Hilke of the incident, although, according to C.C. Mid West, he was not required to do so. Mr. Nunn tried to make other deliveries after the accident, but due to worsening symptoms he had difficulty finishing his runs. He asked Mr. Hilke about workers’ compensation benefits and was handed a typewritten paper stating that he could purchase his own workers’ compensation insurance. Mr. Nunn claims that this is the first time that he was told that it was his responsibility to procure his own workers’ compensation insurance. In March 2002, he sought medical treatment and received some anti-inflammatory medication and some steroid injections. He also had an independent medical examination performed by Dr. Edward Prostic.

Mr. Nunn filed a claim for workers’ compensation naming C.C. Mid West as his employer. He alleged permanent total disability. A hearing was held before an administrative law judge (ALJ), who determined that there was no evidence of an employment relationship between Mr. Nunn and C.C. Mid West. The ALJ held that Mr. Nunn was not entitled to any workers’ compensation benefits since he was an owner-operator and an independent contractor, and because C.C. Mid West was not his statutory employer.

The Commission reversed the decision and found that because the lease was with a sister corporation of C.C. Mid West and could be cancelled with only seven days’ notice, it was not an arm’s length contractual agreement and did not transfer any ownership of the truck to Mr. Nunn. Therefore, Mr. Nunn was not an owner-operator. The Commission also found that C.C. Mid West exercised control over Mr. Nunn in several instances and treated Mr. Nunn like an employee, including retaining the right to discharge him and doing so. The Commission found that “truck transport was the regular business of C.C. Mid West and that Mr. Nunn was performing this service.” Further, although the Agreement stated that Mr. Nunn was an independent contractor, the Commission found that based on the conduct of the parties, he was not an independent contractor. The Commission then decided that he had sustained a compensable injury.

C.C. Mid West appeals the Commission’s finding. C.C. Mid West asserts two points on appeal. It first claims that the award was in error because the facts show that Mr. Nunn was an owner-operator and was exempt from coverage under the Workers’ Compensation Act (Act). It then claims that even if Mr. Nunn was not an owner-operator, the award was still in error because the facts show that he was an independent contractor and not an employee, and that C.C. Mid West was not his statutory employee either.

II. Standard of Review

The Commission’s decision is upheld if it is supported by competent and substantial evidence on the whole record. DiMaggio v. Johnston Audio/D & M Sound, 19 S.W.3d 185, 188 (Mo.App. W.D.2000) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223, 225 (Mo. banc 2003) (overruling numerous cases to the extent that they hold that section 287.495.1 requires a reviewing court to view the evidence and all reasonable inferences therefrom in the light most favorable to the workers’ compensation award)).

The court, on appeal, shall review only questions of law and 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;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

§ 287.495.1. “Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record.” Hampton, 121 S.W.3d at 223. “This standard would not be met in the rare case when the award is contrary to the overwhelming weight of the evidence.” Id.

We defer to the Commission on issues of fact, but questions of law are reviewed de novo. Endicott v. Display Technologies, Inc., 77 S.W.3d 612, 615 (Mo. banc 2002). “A finding that a worker’s compensation claimant is or is not an employee represents an application of law, not a finding of fact....” DiMaggio, 19 S.W.3d at 188.

III. Legal Analysis

A. The Owner-Operator Exception

C.C. Mid West first complains that the Commission erred in finding that Mr. Nunn was not an owner-operator and, therefore, exempt from application of Workers’ Compensation Law. Under the Act, the word employee is defined, in pertinent part, as follows:

shall not include an individual who is the owner and operator of a motor vehicle which is leased or contracted with a driver to a for-hire common or contract motor vehicle carrier operating within a commercial zone as defined in section 390.020 or 390.041, RSMo, or operating under a certificate issued by the motor carrier and railroad safety division of the department of economic development or by the interstate commerce commission.

§ 287.020.1.

“Section 287.020.1, by its terms, merely excludes from the definition of employee an individual: (1) who is the owner and operator of a motor vehicle which is (2) leased or contracted with a driver (3) to a for-hire common or contract motor vehicle carrier operating within a commercial zone.... ” Booth v. Trailiner Corp., 21 S.W.3d 869, 874 (Mo.App. S.D.2000). The only part of this definition at issue is whether or not Mr. Nunn was the owner of the truck that he drove; both parties acknowledge that the other elements are met. The Commission found that he was not the owner for two reasons: the lease “is initially suspect because it is with a sister corporation to the employer rather than an independent leasing company” and the cancellation provision, allowing the lessor the right to cancel with seven days’ notice, nullifies any option-to-purchase rights that Mr. Nunn might have. As a result, the Commission found that no ownership interest was transferred to Mr. Nunn under the lease and he was only an operator. Therefore, the owner-operator exception did not apply to him.

C.C. Mid West asserts that the Commission’s finding that the lease was deficient because GLS Leasco was related to C.C. Mid West is without foundation. Although GLS Leasco and C.C. Mid West are related corporations—the same eorpo-ration that owns GLS Leasco owns C.C. Mid West’s parent company — there is no other evidence of a connection between the two companies. As C.C. Mid West correctly asserts, separate corporations are considered to be distinct legal entities, even if the stock of one is partially or fully owned by the other. Mid-Mo. Tel. Co. v. Alma Tel. Co., 18 S.W.3d 578, 582 (Mo.App. W.D.2000). So the fact that GLS Leasco and C.C. Mid West are related is not enough of a reason to find that Mr. Nunn’s contract with GLS Leasco is not arm’s length. Only when one corporation shows such domination and control over the other, such that the latter is merely the alter ego of the first, do we ignore the separate legal identities of the individual corporations. Real Estate Investors Four, Inc. v. Am. Design Group, Inc., 46 S.W.3d 51, 56 (Mo.App. E.D.2001). We do acknowledge that C.C. Mid West was very involved in setting up the lease, which certainly raises concerns about how unrelated the lease was to Mr. Nunn’s work with C.C. Mid West. Since no evidence was presented showing any such domination or control of either company by the other, the Commission and our court must see them as separate entities. Therefore, this reason for questioning the lease is not valid.

The real question is whether or not the lease itself created an ownership interest for Mr. Nunn in the truck that he was leasing. The Act must be liberally construed in favor of a claimant, but not to the extent that the intent of the legislature is negated. Thompson v. Mo. Veterans’ Home, 58 S.W.3d 657, 661 (Mo.App. S.D.2001) (overruled on other grounds by Hampton, 121 S.W.3d at 223, 225). Section 287.020 does not define “owner.” So we are left to decide what the legislature meant when it said that an owner-operator is not an employee. As both parties acknowledge, there is little case law dealing with this relatively new exception to workers’ compensation law. C.C. Mid West focuses on determining the intent of the legislature by defining the word “owner,” while Mr. Nunn focuses on the two cases that do decide whether or not a claimant is an owner-operator.

When construing a statute, our primary goal is to ascertain the intent of the legislature from the language used and to give effect to that intent by giving the words used their plain and ordinary meaning. State ex rel. Nixon v. QuikTrip Corp., 133 S.W.3d 33, 37 (Mo. banc 2004). When a statute does not define a term, that term “will be given its plain meaning as derived from the dictionary.” State ex rel. Hope House, Inc. v. Merrigan, 133 S.W.3d 44, 49 (Mo. banc 2004). In fact, the Missouri Supreme Court has gone to the dictionary to define terms contained in the Act in the past. See Curry v. Ozarks Elec. Corp., 39 S.W.3d 494, 496-97 (Mo. banc 2001) (overruled on other grounds by Hampton, 121 S.W.3d at 223, 225).

The dictionary defines “own” as, among other things, “to have or hold as property or appurtenance: have a rightful title to, whether legal or natural: possess”; “owner” as “one that owns: one that has the legal or rightful title whether the possessor or not”; and “ownership” as, among other things, “the state, relation, or fact of being an owner.” WebsteR’s Third New INTERNATIONAL DICTIONARY OF THE ENGLISH Language 1612 (1993). “Own” is also defined as “to have power over: control.” Merriam-Webster Online Dictionary. And Black’s Law Dictionary defines “own” as “[t]o rightfully have or possess as property; to have legal title to”; “owner” as “[o]ne who has the right to possess, use, and convey something; a person in whom one or more interests are vested”; and “ownership” as “[t]he bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to others.” BlacK’s Law Dictionary 1137-38 (8th ed.2004).

Based on these dictionary definitions and the language of the lease, Mr. Nunn did not own his truck. The lease states that unless Mr. Nunn exercises his right to purchase the truck, “at all times during the term of this Lease, no title to Tractor shall vest in Lessee.” Although the lease certainly gives him power over the truck and a right to possession and use of it, if he does not exercise his option to purchase it, he does not have title in the truck, which is part of all of the definitions of “own” and “owner.”

C.C. Mid West claims that we can look to the definition of “owner” in other statutory provisions that deal with motor vehicles: Chapters 301, 302, and 303. “Owner” is defined as:

[A]ny person, firm, corporation or association, who holds the legal title to a vehicle or in the event a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purpose of this law.

§ 301.010(42). This definition would certainly encompass the lease that Mr. Nunn had on his truck. As C.C. Mid West correctly points out, “[statutes relating to the same subject matter are considered in pari materia.” KC Motorcycle Escorts, L.L.C. v. Easley, 53 S.W.3d 184, 187 (Mo.App. W.D.2001). Such statutes are construed together even though they are found in different chapters or were enacted at different times. Id. And the legislature is presumed to be aware of the state of the law when it enacts a statute. Thompson, 58 S.W.3d at 661. But while all these statements of the law are true, the real question is whether or not these chapters are actually about the same subject matter. Chapters 301, 302, and 303 are dealing with motor vehicles. Chapter 287, on the other hand, is about workers’ compensation. Although ownership of a motor vehicle is contained within Chapter 287, motor vehicles are not the subject matter of that chapter. So it is unclear whether the definition from section 301.010(42) should be applied, and, as such, we will defer that decision until after we consider the case law.

There are two cases that have considered the owner-operator exception under section 287.020.1, Harp v. Malone Freight Lines, Inc., 16 S.W.3d 667 (Mo.App. E.D.2000) (overruled on other grounds by Hampton, 121 S.W.3d at 223, 225), and Owner Operator Indep. Drivers Ass’n, Inc. v. New Prime, Inc., 133 S.W.3d 162 (Mo.App. S.D.2004). In Harp, the driver and claimant, Mr. Carl Harp, drove a truck owned by his brother, Mr. Dan Harp, and leased to Malone. 16 S.W.3d at 669. After Carl Harp was injured while making a delivery for Malone, he filed a workers’ compensation claim and the Commission found that he was an employee of Malone. Id. Malone claimed that section 287.020.1 exempted Carl Harp because it applied to operators of over-the-road trucks regardless of whether or not the driver owned the truck. Id. at 670. The eastern district held that the exemption applied only if the operator was an owner and operator of the truck. Id. Because Carl Harp did not own the truck — his brother did — he was not within the exception. Id.

Although Harp analyzes the meaning of the owner-operator exception, it is distinguishable from our case because Carl Harp clearly did not own the truck that he was driving and there was no lease similar to the one that Mr. Nunn signed. As the opinion makes clear, Dan Harp’s ownership of the truck did not, in any way, make Carl Harp the owner of the truck. As such, Harp is not really helpful to either Mr. Nunn or C.C. Mid West.

New Prime, on the other hand, is far more similar to our case. New Prime was a class action suit brought by truck drivers who had been charged and paid premiums for workers’ compensation insurance by the company for which they drove. 133 S.W.3d at 166. The drivers had entered into lease agreements with Prime, a motor carrier that was primarily engaged in the enterprise of providing transportation services. Id. The drivers had trucks through lease-purchase agreements with Success Leasing, Inc. Id. The drivers alleged that Success was wholly owned by certain officers and directors of Prime, id., but whether that is true is not entirely clear in the case and did not appear to influence the southern district’s decision in any way. The main issue from New Prime that applies to our case is whether or not the drivers were owner-operators and, therefore, exempt from workers’ compensation coverage. See id. at 171-73. The southern district considered the Harp decision and its discussion of the meaning of the owner-operator exception. Id. at 172. Prime made the same argument that C.C. Mid West makes, that we should look to the definition of “owner” that exists in Chapters 301, 302, and 303. Id. The southern district rejected this argument, stating:

Prime cites no authority directly supporting its theory that the workers’ compensation law intended to use the above definition of “owner.” [from sections 301.010(42), 302.010(16), and 303.020(9) ] We do, however, have the following principles of the workers’ compensation law that were stated previously in this opinion: that the fundamental purpose of the workers’ compensation law is to lay the responsibility on industry for losses sustained by employees resulting from injuries arising out of or in the course of employment and that the workers’ compensation law is to be construed so as to extend the benefits of the act to the largest possible class of people. These principles provide support for the argument that perhaps the non-adoption of the definition of “owner” from other chapters was intentional.

Id. at 173 (internal citations omitted). The court also acknowledged that the case was factually different from Harp, but stated that because the lease-purchase agreement specifically indicated that the lessee would not obtain any ownership interest in the vehicle during the period of the lease, the court would apply the statutory construction from Harp. Id. The court found that the drivers were not owner-operators. Id.

Aside from not knowing the exact language of the lease-purchase agreements between the drivers and Success in New Prime, that case appears to be identical to our case. The drivers all have their own trucks, but they are through leases with the option to purchase and the drivers did not obtain ownership during the lease. There is some type of connection between the company that leases the trucks and the motor vehicle carrier company. And the transportation company argued that the definition of owner from Chapters 301, 302, and 303 should apply. So following New Prime, Mr. Nunn is not an owner-operator.

But C.C. Mid West asserts that New Prime was wrongly decided. It claims that no direct authority of the legislature’s intent to adopt the definition from Chapter 301 is necessary because we must presume that the legislature knew the state of the law when it adopted the change in section 287.020.1. Thompson, 58 S.W.3d at 661. C.C. Mid West then claims that the statutes must be construed together.

C.C. Mid West also points out that our Supreme Court has said that “owner” is a word of rather broad meaning. U.S. Fid. & Guar. Co. v. Safeco Ins. Co. of Am., 522 S.W.2d 809, 817 (Mo. banc 1975). The court also cited with approval an Eighth Circuit case involving Missouri law that said that the word “owner” when applied to motor vehicles includes “ ‘not only absolute estates but also includes estates less than absolute’ ” and that an owner “ ⅛ one who has dominion over’ ” the vehicle. Id. at 817-18 (quoting Powell v. Home Indem. Co., 343 F.2d 856, 859 (8th Cir.1965)). See also, Huff v. Union Elec. Co., 598 S.W.2d 503, 512-13 (Mo.App. E.D.1980) (holding that a utility is an “owner” of a railroad right-of-way for workers’ compensation statutory employer purposes, based in part on its control over the land, its volt line on the right-of-way that, as a practical matter, would remain there for years to come, and the definition of “owner”). So C.C. Mid West maintains that the word “owner” includes Mr. Nunn because he has a lease-purchase agreement for his truck, which is less than an absolute estate but still gives him dominion over the truck.

After considering all of these arguments, we agree with the New Prime court and will apply its decision to this case. We do not believe that Chapters 301, 302, and 303 deal with the same subject matter as Chapter 287; the former are specific to motor vehicles and the latter is about workers’ compensation. While it is true that we will sometimes use analogous statutes to construe new statutes, we do not believe that this situation warrants such an analogy. The southern district was correct in holding both that the non-adoption of the definition of “owner” from the other chapters was probably intentional and that these lease-purchase agreements do not create an ownership interest in the trucks. The Commission’s finding that Mr. Nunn is not an owner-operator and not exempt from the Act under this exception is, therefore, supported by competent and substantial evidence on the whole record and so we affirm.

B. Independent Contractor or Employee

C.C. Mid West next claims that even if Mr. Nunn was not an owner-operator, he still is not entitled to coverage under the Act because he is an independent contractor arid not an employee, and that the Commission erred as a matter of law in finding otherwise. As stated above, a finding that a claimant is or is not an employee is an application of law. DiMaggio, 19 S.W.3d at 188. But under section 287.495.1, we can reverse the resolution of this question of law only on one of four grounds; the relevant ground here being that there was not sufficient competent evidence in the record to support the Commission’s decision.

In deciding whether the claimant is an employee or an independent contractor, the facts of each case control. Phillips v. Par Elec. Contractors, 92 S.W.3d 278, 282 (Mo.App. W.D.2002) (overruled on other grounds by Hampton, 121 S.W.3d at 223, 225). The pivotal question is whether the employer had the right to control the means and manner of the service, instead of just controlling the ultimate results of the service. DiMaggio, 19 S.W.3d at 188. Missouri generally uses the right to control test to determine whether a claimant is an employee or an independent contractor. Phillips, 92 S.W.3d at 282. The court considers eight factors: “(1) the extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right to discharge, (5) the method of payment, (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the employer, and (8) the employment contract.” Id. Each of these factors is relevant to the determination, but no one factor is dispositive. DiMaggio, 19 S.W.3d at 189. Both parties discuss this eight factor test, - and each believes that the factors weigh in its favor.

1. Extent of Control

In looking at how much control C.C. Mid West had over Mr. Nunn, we look to the Agreement to see what powers C.C. Mid West retained for itself. Mr. Nunn is not allowed to be irivolved in anything that would conflict with C.C. Mid West’s interests, which seems reasonable because C.C. Mid West would not want someone who is providing it a service to be working against its interests. C.C. Mid West can also terminate the Agreement for any reason, which suggests a certain amount of control.

Mr. Nunn is responsible for providing his own vehicle and all fuel and maintenance costs, and there are no directions on how or where he should purchase these things. C.C. Mid West must inform Mr. Nunn where to pick-up and deliver his orders, but says nothing about how he must deliver them. Mr. Nunn has the sole right to hire and terminate his own employees, and C.C. Mid West has no right to control, direct, or supervise those employees except for the ultimate pick-up and delivery. It did, however, retain the right to complain about and have removed any driver who was not careful and competent. Both parties can cancel the Agreement with thirty days’ notice, although during the first ninety days of the Agreement C.C. Mid West can cancel the Agreement without any notice. Mr. Nunn is required to record deliveries on a driver report. Although Mr. Nunn is not required to wear a uniform, C.C. Mid West provided him with the opportunity to do so and paid him a bonus if he did so.

This factor is not entirely clear. The Commission found that C.C. Mid West retained control over Mr. Nunn because of the following: it had the right to terminate him without notice for the first ninety days, he could not engage in any business that conflicted with C.C. Mid West’s interests, he could not have his wife or child ride with him, he had to use C.C. Mid West forms, and he had to sign shipping documents “on behalf of the Company.” There is sufficient competent evidence in the record to support these findings.

%. Actual Exercise of Control

In looking at how the parties actually conducted themselves, how much control C.C. Mid West actually exercised over Mr. Nunn is a closer question. Mr. Nunn claims that the route for each day was set out and his truck was loaded according to that route. Mr. Hilke, however, claimed that the drivers chose their routes and that their trucks were then loaded accordingly. Mr. Nunn was not required to call in during the day, but doing so was the only way to find out about more deliveries. Mr. Nunn believed that he was unable to haul for any other companies and could not decline any hauls, although Mr. Hilke stated that Mr. Nunn could both haul for other companies and decline hauls for C.C. Mid West.

We defer to the Commission on issues of credibility and for the resolution of conflicts in the evidence. Seeley v. Anchor Fence Co., 96 S.W.3d 809, 815 (Mo.App. S.D.2002) (overruled on other grounds by Hampton, 121 S.W.3d at 223). The Commission resolved these conflicts in Mr. Nunn’s favor, finding that he was required to call into the terminal after each delivery and was provided with the route that he was to take and that his truck was loaded according to that route. Because the evidence was conflicting, we defer to the Commission’s resolution of that conflict and finding that C.C. Mid West exercised control over Mr. Nunn.

8. Duration of Employment

Mr. Nunn worked for C.C. Mid West from December of 2000 until he was terminated in May of 2002. So he was not hired for just one job, he worked for C.C. Mid West continually for approximately a year and a half.

⅛. Right to Discharge

Both parties had the right to cancel the contract, which appears to put them on equal footing. But C.C. Mid West could terminate for any reason, while nothing is said about whether Mr. Nunn must have a reason to terminate. And during the first ninety days of the contract, C.C. Mid West was not even required to give Mr. Nunn any notice before termination. Further, C.C. Mid West has actually exercised this right to terminate Mr. Nunn.

5. Method of Payment

Mr. Nunn was paid based on the mileage and weight of his hauls. At the end of the year he received a form 1099, not a W-2. And C.C. Mid West did not deduct any taxes from his pay, nor provide him with any benefits. Further, in 2000, the only year for which we have Mr. Nunn’s tax information, Mr. Nunn did not claim his pay from C.C. Mid West as wages, he claimed it as income from his business. So payment definitely falls in favor of finding an independent contractor relationship, although we are not bound by the method used to report earnings. Wilmeth v. TMI, Inc., 26 S.W.3d 476, 481 (Mo.App. S.D.2000) (overruled on other grounds by Hampton, 121 S.W.3d at 223, 225).

6. Equipment

Mr. Nunn provided the majority of his equipment. C.C. Mid West provided only the trailers that were attached to the truck for the hauls and a cell phone so that Mr. Nunn could call in to find out about more deliveries. The Commission found that the provision of this equipment demonstrated C.C. Mid West’s exercise of control over Mr. Nunn, although it made no findings about the fact that Mr. Nunn provided the rest of his equipment.

7. Mr. Nunn’s Work and the Regular Business of C.C. Mid West

C.C. Mid West is in the business of providing transportation services to various clients. Mr. Nunn drives a truck transporting goods to those clients. C.C. Mid West could not provide the transportation services without truck drivers, so Mr. Nunn’s work was within its regular business.

8. The Employment Contract

The Agreement makes it very clear that Mr. Nunn is an independent contractor. That fact is in the title of the Agreement as well as the first section. The fact that Mr. Nunn chose not to read the Agreement and believed that it was an employment contract does not negate the fact that it is actually an independent contractor contract. A person signing an agreement has a duty to read it and, absent a showing of fraud, if the person is capable of reading and understanding the contract then he is charged with the knowledge of what the contract says. Farmland Indus., Inc. v. Bittner, 920 S.W.2d 581, 584 (MoApp. W.D.1996). He cannot avoid the consequences of what he signed by simply saying that he did not know what he signed. Savannah Place, Ltd. v. Heidelberg, 122 S.W.3d 74, 79 (Mo.App. S.D.2003). Mr. Nunn is, therefore, held responsible for signing a contract that states that he is an independent contractor. But “ ‘while the contractual designation of the work status of a person is not to be brushed aside or ignored, it is not conclusive when there is evidence to overcome such designation.’ ” Gaston v. J.H. Ware Trucking, Inc., 849 S.W.2d 70, 75 (Mo.App. W.D.1993) (internal citation omitted) (overruled on other grounds by Hampton, 121 S.W.3d at 223, 225).

All of these factors are relevant, but we cannot focus on one to the exclusion of the others. DiMaggio, 19 S.W.3d at 189. Three of the factors support finding that Mr. Nunn is an independent contractor: factors 5 (method of payment), 6 (equipment), and 8 (employment contract). Three factors support finding that he is an employee: 3 (duration of employment), 4 (right to discharge), and 7 (regular business of C.C. Mid West). We defer to the Commission on the resolution of evidence, Seeley, 96 S.W.3d at 815, so factor 2 (actual control) also supports finding that he is an employee. Factor 1 (extent of control) is less clear, but the Commission found that that factor supported finding that Mr. Nunn was an employee and there was substantial and competent evidence to support that decision. So under our standard of review we must accept that factual finding. There are, therefore, five factors in favor of finding an employment relationship and only three factors in favor of finding an independent contractor relationship. This other evidence overcame the contractual designation of independent contractor. So Mr. Nunn was an employee, not an independent contractor.

Further, Missouri has a longstanding principle that workers’ compensation “ ‘law is to be broadly and liberally interpreted ... and is intended to extend its benefits to the largest possible class ... Any doubt as to the right of an employee to compensation should be resolved in favor of the injured employee.’ ” Phillips, 92 S.W.3d at 284 (quoting West v. Posten Constr. Co., 804 S.W.2d 743, 746 (Mo. banc 1991)). Workers’ compensation law’s purpose is to put employees’ losses due to injury during employment onto the industry because it can better afford these losses. Gaston, 849 S.W.2d at 74, 76. This purpose also supports finding that Mr. Nunn was an employee; C.C. Mid West could pass this cost onto customers while Mr. Nunn could not because C.C. Mid West set his income.

IV. ConclusioN

Under our standard of review, the Commission’s decision must be upheld if it is supported by competent and substantial evidence on the whole record. DiMaggio, 19 S.W.3d at 188. The Commission’s finding that Mr. Nunn is not an owner-operator is supported by competent and substantial evidence on the whole record. And while the Commission’s finding that Mr. Nunn was an employee is a question of law, we defer to the Commission’s finding of the facts that determine whether or not he is an employee and those facts are supported by competent and substantial evidence on the whole record. This is not one of those rare cases where the award is contrary to the overwhelming weight of the evidence. Therefore, we affirm the Commission’s decision.

LISA WHITE HARDWICK, P.J., and ROBERT G. ULRICH, J. concur.

      . Mr. Hilke also testified that some of the other drivers had trucks leased through GLS Leasco, while others got their trucks elsewhere. Mr. Hilke did acknowledge that he did not have copies of any of the other drivers' leases, but he claimed that was only because GLS Leasco had sent Mr. Nunn’s lease to his office and that had not occurred with the other drivers.

      . Tractor and truck are used interchangeably to describe the vehicle driven by a truck driver.

      . Unless otherwise indicated, all statutory references are to RSMo. (2000).

      . This is available at http://www.merriam.web-ster.com. The reader must then enter "own” into the dictionary part of the webpage to be taken to the definition.

      . Sections 302.010(16) and 303.020(9) have similar definitions for owner.

      . Booth also deals with the owner-operator exception, but in Booth the claimant admitted that he was an owner-operator, 21 S.W.3d at 875, so that case is not applicable to our case.

      . In the New Prime opinion, New Prime is referred to as Prime.

      . The Commission’s second reason for finding no ownership was the fact that the lessor can cancel with seven days’ notice, negating the option-to-purchase provision. C.C. Mid West claims that the right to cancel is irrelevant to whether or not Mr. Nunn owned the truck. We were not directed to any law on this matter. Because we held that Mr. Nunn is not an owner-operator, based on the language of the lease, the definition of "owner," and New Prime, we do not consider the effect of the seven days' notice to cancel on the requirement that Mr. Nunn give thirty days’ notice to purchase. As stated, the whole record otherwise supports the Commission’s decision.

      . Because we affirm the Commission's finding that Mr. Nunn was C.C. Mid West's employee, we do not consider whether C.C. Mid West was his statutory employer.

      . Mr. Nunn requested, in his conclusion, that we allow him attorney fees. But litigants must bear their own attorney’s fees unless otherwise provided for by contract or statute. Gebru v. St. Louis County, 136 S.W.3d 89, 93 (Mo.App. E.D.2004). Mr. Nunn has not pled any basis for receiving these fees, so we deny his request.