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

text:
    Janice L. HOLTGREWE, Respondent, v. Glenn A. HOLTGREWE, Appellant.
    No. ED 84274.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 18, 2005.

      Daniel J. Briegel, Union, MO, for appellant.
    Paula Jean Meyer, Hermann, MO, for respondent.
   ROBERT G. DOWD, JR., Judge.

Glenn A. Holtgrewe (Husband) appeals from the trial court’s judgment and decree of dissolution of marriage from Janice L. Holtgrewe (Wife) denying child support to either party. Husband contends the trial court erred in not awarding him child support because the trial court incorrectly calculated its Form 14 by crediting both parties with social security benefits resulting from Husband’s disability. We reverse and remand.

At the hearing on the parties’ dissolution, Husband and Wife stipulated to the division of all marital property and debt. Husband and Wife also stipulated to joint legal and physical custody of the parties’ two children, Devon, born October 11, 1991, and Jamie, born July 17, 1987, with the primary residence of Devon with Husband and the primary residence of Jamie with Wife. Pursuant to the stipulation, the only issue remaining for the trial court to determine was the parties’ respective child support obligations.

At the hearing, Wife testified that she earns $12.45 per hour and that she consistently works forty hours per week. Wife further testified that it cost her $141.95 per month to provide health and dental insurance for the minor children and that she would continue to provide such insurance for the children.

Husband testified that he is disabled and receives disability income in the amount of $1,011.00 per month. Husband also testified that each of his two children receive $252.00 per month in social security benefits as a result of Husband’s disability. Husband receives $252.00 per month for Devon and Wife receives $252.00 per month for Jamie.

After all the evidence was presented, the trial court entered its judgment and decree of dissolution of marriage approving the parties’ stipulations. The trial court found that neither party was obligated to pay child support. In doing so, the trial court rejected the parties’ respective Form 14 calculations and computed its own Form 14. In its Form 14 calculations, the trial court gave each party a $252.00 credit on line 10 of each of the forms, one form for Husband and one form for Wife, representing the social security benefit income which each party received per month as payee for the child in his or her respective primary placement. Thereafter, the trial court found the Form 14 calculations to be unjust and inappropriate pursuant to Rule 88.01, and found that neither party was required to pay the other child support. Husband now appeals.

In his sole point, Husband -contends the trial court erred in not awarding him child support. Husband asserts the trial court erroneously applied the parties’ incomes and social security benefits on its Form 14 and in its application of Rule 88.01. Husband maintains the trial court incorrectly attributed social security benefits as a credit to Wife in its Form 14 calculation. We agree.

The standard for reviewing a judgment of dissolution is the same for reviewing any court-tried action. Krost v. Krost, 133 S.W.3d 117, 119 (Mo.App. E.D. 2004). The judgment must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).

In its Form 14, the trial court attributed monthly income in the amount of $2,158.00 to Wife, based on $24.50 per hour for a forty-hour week, and in the amount of $1515.00 to Husband, disability income in the amount of $1011.00 plus $252.00 in social security benefits for each child. The trial court credited Wife $141.95 for insurance costs. The trial court also credited each party $252.00 for social security benefits as payee for the child placed in their respective primary custody. It is this credit that Husband argues the trial court incorrectly attributed to Wife citing Weaks v. Weaks, 821 S.W.2d 503 (Mo. banc 1991).

In Weaks, the Missouri Supreme Court held that social security disability benefits paid for children for the disability of the parent obligor were to be credited, dollar for dollar, against the obligor’s support amount. Id. at 505-06. In reaching its decision, the court noted that the purpose of social security disability payments is to replace income lost due to the recipient’s inability to work, and, therefore, it would be inequitable to withhold a credit against the child support obligation where the party charged with a support obligation may have no ability to satisfy that obligation other than through the governmental disability payments. Id. at 506. The key fact ⅛ that the benefits paid to the children are derived from the funds “earned” by the contributor and the person seeking the credit has contributed the funds through deductions of wages. Id. at 506. Thus, it is the parent charged with a support obligation that is entitled to a credit toward that obligation for social security benefits derived through that parent’s account. Id. at 505-06.

Similarly, in Adams v. Adams, 108 S.W.3d 821 (Mo.App. W.D.2003), the husband sought to have the child’s social security benefits included in the child support calculations. Id. at 829. The child received social security benefits due to the wife’s disability. Id. The court stated, citing Weaks, that it was the wife’s social security account from which the child’s benefits were derived. Thus, the court held for it to have included the child’s social security benefits in the husband’s child support calculation would have had the effect of reducing the amount of child support being paid by the husband and the husband is not entitled to a credit for the amount of benefits the child receives due to the wife’s disability. Id.

Here, like the wife in Adams, it is Husband’s social security account from which the two children’s benefits are derived. Given that the social security payments are intended to replace income from Husband, the trial court erred in giving a credit to Wife for the amount of benefits the child receives due to Husband’s disability. Thus, the trial court erred in crediting Wife $252.00 in social security benefits towards her support obligation.

The judgment is reversed as to the trial court’s child support award and is remanded for recalculation of the Form 14 child support amount. The case is remanded for further proceedings consistent with this opinion.

PATRICIA L. COHEN, P.J., and KATHIANNE KNAUP CRANE, J., concur.

      . Rule 88.01 provides in pertinent part:
      (b) There is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the correct amount of child support to be awarded in any judicial or administrative proceeding. Unless a request is filed pursuant to Rule 73.01(c), a written finding or a specific finding on the record by the court or administrative agency that the child support amount under a correctly calculated Form No. 14, after consideration of all the relevant factors, is unjust or inappropriate shall be sufficient in a particular case to rebut the presumption that the amount of child support so calculated is correct.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Aaron DAVIS, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84295.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 18, 2005.
    Lisa M. Stroup, Office of the Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Aaron Davis (Movant) appeals from the judgment upon his conviction by a jury for murder in the second degree, Section 565.021(1), RSMo 2000, and armed criminal action, Section 571.015. On appeal, Movant argues the trial court erred in denying his Rule 29.15 motion without an evidentiary hearing because trial counsel was ineffective for failing (1) to investigate and call an expert in toxicology and (2) to present evidence that Movant was under the influence of alcohol, marijuana, and AIDS medication at the time of his statements to the police. We affirm.

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

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


text:
    Ann W. LEWIS, Petitioner/Respondent, v. Ted C. LEWIS, Respondent/Appellant.
    No. ED 84252.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 18, 2005.
    Diane Campbell Howard, Edwin Dean White III, Limbaugh, Russell, Payne & Howard, Cape Girardeau, MO, for Appellant.
    Richard G. Steele, Bradshaw, Steele, Cochrane & Berens, L.C., Cape Girardeau, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Ted C. Lewis appeals from the trial court’s judgment and decree of dissolution of marriage dissolving his marriage to Ann W. Lewis.

We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Andre REYNOLDS, Appellant.
    No. ED 83984.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 18, 2005.
    Kristina Starke, St. Louis, MO, for appellant.
    Deborah Daniels, Leslie McNamara (co-counsel), Jefferson City, MO, for respondent.
    Before GEORGE W. DRAPER III, C.J., CLIFFORD H. AHRENS, J. and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

Andre Reynolds appeals the judgment entered on his conviction for drug trafficking. He claims that the trial court erred by admitting hearsay and by repeatedly instructing the jury to continue deliberating and failing to give a “hammer instruction” or declare a mistrial sua sponte.

We have reviewed the parties’ briefs and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. The parties have, however, been provided a memorandum setting forth the reasons for our decision. The judgment is affirmed under Rule 30.25(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. Thomas W. EWING, Defendant/Appellant.
    No. ED 83119.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 18, 2005.
    Shawn L. Naccarato, Assistant Attorney General, Jefferson City, MO, for respondent.
    Amy M. Bartholow, Columbia, MO, for appellant.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Defendant, Thomas W. Ewing, appeals from the judgment entered on a jury verdict finding him guilty of one count of robbery in the first degree, in violation of section 569.020 RSMo (2000), one count of kidnapping, in violation of section 565.110 RSMo (2000), one count of burglary in the first degree, in violation of section 569.160 RSMo (2000), and two counts of armed criminal action, in violation of section 571.015 RSMo (2000). The trial court found defendant to be a persistent offender and sentenced him to thirty years imprisonment on each count, the terms to be served concurrently with each other, but consecutively to a sentence imposed in a separate case.

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

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


author: SHERRI B. SULLIVAN, J.

text:
    Garrett JOHNSON, Employee/Appellant, v. VAN WATERS & ROGERS, Employer/Respondent.
    No. ED 84491.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 25, 2005.

      Harry James Nichols, Stephen G. Kalu-dis, Co-Counsel, St. Louis, MO, for appellant.
    Jennifer Ann Baumann, St. Louis, MO, for respondent.
   SHERRI B. SULLIVAN, J.

Introduction

Garrett Johnson (Employee) appeals from an Order Dismissing Application for Review (Order) entered by the Labor and Industrial Relations Commission (Commission) dismissing his Motion to Set Aside Dismissal as untimely filed. We dismiss the appeal for lack of jurisdiction.

Factual and Procedural Background

On August 6, 1999, Employee filed with the Division of Workers’ Compensation (Division) a Claim for Compensation, to which Van Waters & Rogers (Employer) filed an answer. On January 13, 2003, a Division Administrative Law Judge (ALJ) entered an Order of Dismissal with Prejudice for failure to prosecute Employee’s claim. The Order of Dismissal indicated that an application for review may be filed with the Commission within twenty days of the date of the Order of Dismissal.

On February 13, 2004, Employee filed with the Commission a Motion to Set Aside Dismissal, to which Employer filed a response. The Commission treated the Motion to Set Aside Dismissal as an application for review. On March 26, 2004, the Commission entered its Order dismissing the application for review.

The Commission found that Employee alleged no reason for his failure to file an application for review within twenty days of receiving actual notice of the dismissal and that Employee alleged no facts to support a finding that the application for review was timely. Accordingly, the Commission concluded that Employee’s application for review was not within the jurisdiction of the Commission to consider. Employee appeals from the Order.

Discussion

Employee raises two points on appeal. We address his second point first, as it raises a jurisdictional issue and is disposi-tive of his appeal. In his second point, Employee argues that the Commission erred in dismissing his application for review because there was no evidence in the record that conclusively demonstrated that the application for review was not filed within the statutory time limit.

An order of dismissal is deemed an award and subject to review and appeal in the same manner as provided for other awards under workers’ compensation law. Section 287.655. The proper avenue for review of a dismissal for failure to prosecute is by filing an application for review with the Commission within twenty days of the award date. Section 287.480.1; State ex rel. Doe Run Co. v. Brown, 918 S.W.2d 303, 307 (Mo.App. E.D.1996). Section 287.480 does not provide for late filing and does not carve out an exception for filing out of time either for good cause or for ignorance of the law. Merritt v. Shoney’s Inc., 925 S.W.2d 494, 495 (Mo.App. E.D.1996).

We conclude that the record sufficiently demonstrates that Employee did not file his Motion to Set Aside Dismissal within the statutory time limit. First, Employee attached to his Motion to Set Aside Dismissal a Failure to Prosecute Dismissal Memorandum signed by the ALJ on January 10, 2003, which indicated that Employee’s “attorney appeared.” In its Order, the Commission found that Employee’s attorney was present at the January 10, 2003 hearing before the ALJ for consideration of Employee’s alleged failure to prosecute his claim. Employee notes that the memorandum was not signed by his attorney; however, the form does not include a signature line for an employee’s attorney.

Second, the Order of Dismissal states that Employee’s attorney was notified of the dismissal at his current address. The Order of Dismissal also states: “Notice to Show Cause Why Claim Should Not Be Dismissed and of the hearing date was properly sent to all parties according to the provisions of Sections 287.520 and 287.655, RSMo. and 8 CSR 50-2.010. In his Motion to Set Aside Dismissal, Employee alleged that the Division did not mail a copy of the Order of Dismissal to Employee or his attorney. The records of the Division constitute prima facie evidence of the date of mailing of any notice, determination, award or other paper mailed pursuant to Chapter 287, RSMo. 8 C.S.R. 50-2.010(12)(c). Employee presented no evidence to support his allegation or rebut the presumption that the Division properly notified the parties of the dismissal.

Even if we believed Employee that neither he nor his attorney received proper statutory notice of the dismissal, we nonetheless conclude that Employee is not entitled to relief. A party who has received actual notice is not prejudiced by and cannot complain of the failure to receive statutory notice. Mosby v. Treasurer of State of Missouri, 954 S.W.2d 11, 13 (Mo.App. E.D.1997).

In his Motion to Set Aside Dismissal, Employee states:

Later, upon contacting the Division’s office to inquire regarding setting status, [Employee’s attorney] was then advised that this claim had been dismissed. On 7/21/03 [Employee’s attorney] requested a copy of the Division’s file and the Division sent notice that the file had been copied on 8/21/03.

In his brief, Employee states that the “copying bill from the Division was paid on September 18, 2003 ... and, sometime thereafter, [Employee’s attorney] became aware of the fact that the cause had been dismissed.”

We find these statements to be sufficient admissions by Employee that he received actual notice of the Order of Dismissal more than twenty days prior to his filing the Motion to Set Aside Dismissal, and therefore the motion, treated as an application for review, was untimely filed.

The procedures outlined for appeal in workers’ compensation cases are mandatory. Merritt, 925 S.W.2d at 495. The timely filing of an application for review in a workers’ compensation case is jurisdictional and requires strict compliance with the statutory requirements. Id. Failure to comply with the statutory time for appeal results in a lapse of jurisdiction and of the right of appeal. Id.

Because Employee’s application for review was untimely filed, the Commission never acquired jurisdiction to review the Order of Dismissal. Thus, we lack jurisdiction to review Employee’s appeal.

Conclusion

Employee’s appeal is dismissed for lack of jurisdiction.

GARY M. GAERTNER, P.J., and BOOKER T. SHAW, J., concur.

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

        . In light of our ruling on Employee’s point two on appeal, we need not address his point one on appeal, which speaks to the merits of the dismissal.


text:
    STATE of Missouri, Respondent, v. Darnell JONES, Appellant.
    No. ED 84073.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 25, 2005.
    Timothy J. Forneris, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L; Kramer, Jefferson City, MO, for respondent.

      Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Darnell Jones (“Defendant”) appeals the judgment and sentence entered upon his conviction of assault in the first degree, forcible sodomy, and felonious restraint following a non-jury trial. 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 30.25(b).


text:
    STATE of Missouri, Respondent, v. Frenzel ROBINSON, Appellant.
    No. ED 82630.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 25, 2005.
    Scott Thompson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Eaton, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Robinson (“Defendant”) appeals from the judgment entered after a jury convicted him of one count of forcible rape (“Count 1”), one count of burglary in the first degree (“Count III”), and one count of stealing under $750.00 (“Count V”). The trial court sentenced Defendant to life imprisonment on Count I, fifteen years on Count III, and one year on Count V, with Count III and Count V to be served concurrently to each other, but consecutive to Count I.

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

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Willie James HAMILTON, Appellant.
    No. ED 83596.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 25, 2005.

      John William Simon, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Willie Hamilton (“Defendant”) appeals from the judgment entered after a jury convicted him of attempted statutory sodomy in the first degree in violation of Section 564.011 RSMo 2000.

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

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    Danny ARRINGTON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84133.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 25, 2005.
    Mark A. Grothoff, Assistant Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Danny Arrington (“Movant”), appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. Following a jury trial, Movant was convicted of attempted forcible rape, sections 564.011 and 566.030, RSMo (1994), and first degree burglary, section 569.160. Movant was sentenced to concurrent terms of twenty years imprisonment for attempted forcible rape and fifteen years imprisonment for first degree burglary. We affirm.

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

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


author: PATRICIA L. COHEN, Presiding Judge.

text:
    FORD MOTOR COMPANY, Respondent, v. CITY OF HAZELWOOD, Appellant.
    No. ED 83669.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 25, 2005.
    Kevin O’Keefe, Clayton, MO, for appellant.
    James C. Owen, Chesterfield, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Introduction

The City of Hazelwood, Missouri, appeals the judgment of the Circuit Court of St. Louis County refunding $1,232,499.00 in license fees plus pre-judgment interest to Ford Motor Company pursuant to Section 139.031, R.S.Mo 2000, and granting declaratory and injunctive relief prohibiting Hazelwood from enforcing its ordinances in a manner violative of the Commerce Clause. Because we find that Ford failed to file a written protest concurrently with the payment of its license fee, as required by Section 139.031, we reverse and remand.

Statement of the Facts and Proceedings Below

Ford owns and operates an automobile assembly plant known as the St. Louis Assembly Plant (“SLAP”) in Hazelwood, Missouri. At the SLAP, Ford assembles motor vehicles from thousands of parts, most of which come from outside Missouri. Hazelwood imposes a license fee on Ford for the privilege of conducting business within Hazelwood.

In order to conduct a manufacturing business in Hazelwood, Chapter 605.020 of the Hazelwood City Code (“the Code”) requires that “every person defined to be a merchant, manufacturer, or miscellaneous service occupation, shall, before going or offering to do business as such, procure from the Director of Finance a license therefor under the provisions of this Chapter.” Section 605.120 of the Code requires a merchant or manufacturer to file an application on or before March 16th of each year. The license renewal application form is provided by Hazelwood and the calculation of the fee owed is performed by the taxpayer on the form. The form requires the taxpayer to maintain accounting records adequate to verify the accuracy of the valuation provided.

Section 605.140 of the Code provides that license fees accompanied by “a proper application and attached documentation” are due on or before March 16th of each year. Section 605.130 of the Code governs delinquent license fee applications and provides, in pertinent part, as follows:

B. The taxpayer’s securing of an extension of time in which to file shall stay the accrual of penalty, however, an estimated license fee, which is reasonably based upon the previous year’s fee, must be paid at the time the request for an extension of time is submitted. Upon filing of a completed application for which an extension has been granted, the taxpayer must pay in full any deficiency between the estimated fee previously deposited and the actual fee due. If the estimated fee paid by the taxpayer is greater than the actual fee due, the Director of Finance shall refund the overpayment to the taxpayer.

(Emphasis added):

Ford’s 2002 license^ application and annual license fee was due and payable by March 16, 2002. By letter dated January 25, 2002, Ford requested an extension of timé to file its application asserting, “there is considerable accounting work involved in arriving at our figures and it is necessary that we request an extension of time in which to file.” In a letter dated January 29, 2002, Hazelwood’s Finance Director, Donnie Bryant, responded as follows:

Before I can approve your request, Ford must pay a reasonable estimate of fees, comparable to last year. Upon receiving the payment, I will forward written notice of our extension of time to file until April 15th. Your actual payment due will be adjusted at the time you file your license application.

On March 8, 2002, Ford forwarded to Hazelwood a check in the amount of $2,554,808.00. In compliance with the Code and Ms. Bryant’s correspondence, this amount constituted the same amount Ford had paid as a license fee in 2001. The check was not accompanied by a written protest or challenge. Accordingly, when Hazelwood received Ford’s check, the funds were not escrowed, separated, or treated as unavailable in connection with preparation of the budget.

Upon receiving Ford’s check, Hazelwood granted Ford a license application extension until April 15, 2002. On April 15, Ford submitted its license application along with a protest letter, challenging the gross sales portion of the license fee on grounds that it violated the Commerce Clause, and sought a refund of $1,232,499.00.

On April 23, 2002, Ms. Bryant denied the requested refund, on the basis that the protest was not timely because it did not accompany the March 8th payment. In addition, Ms. Bryant rejected Ford’s method of valuing its tax base, as set forth in its April 15th protest letter. Although Hazel-wood’s denial letter did not contain any notice of a right to appeal, Section 605.170 of the Code establishes a Board of Review for taxpayers challenging decisions of the Hazelwood Director of Finance as well as a fifteen-day deadline from the date of the challenged decision to file a petition for review.

Ford did not appeal to the Hazelwood Board of Review. Rather, Ford filed a four-count Petition for Tax Refund and Declaratory Judgment in the circuit court seeking: “Refunds under § 605.130(B) of the Hazelwood Municipal Code” (Count I); “Refunds under § 139.031, R.S.Mo-Code Violation” (Count II); “Refunds under § 139.031 R.S.Mo-Commerce Clause” (Count III); and “Injunction” (Count IV). In Count IV, Ford incorporated the prior three counts seeking a refund and, in addition, sought a declaration that the “License Fee, on its face or as applied, violates the Commerce Clause” and an injunction prohibiting Hazelwood from implementing the Code to impose its “License Fee on that portion of a manufacturer’s goods attributable to activities from other jurisdictions where the same goods are subject to the same or similar taxation.”

Following a bench trial, the trial court entered its Findings of Fact, Conclusions of Law and Judgment. The trial court determined, among other things, that Ford’s April 15th protest accompanying its license application was timely and Ford was entitled to a refund in the amount of $1,232,499.00 on Count II, or alternatively, Count III of Ford’s Petition. More specifically, the court concluded that because Ford filed its protest letter on the extended due date for the license application, it was timely. The trial court also determined that, as a matter of fact, Ford revised the way it apportioned its fee in its 2003 license application using a three-factor apportionment method and paid $39,779.00 as a license fee. In its order, the trial court found that “[t]he three-factor state apportionment formula submitted by Ford” accomplishes the goal of fair apportionment and preserves Hazel-wood’s ordinance. The trial court granted the declaratory relief prayed for in Court IV and ordered that “[a]ll companies subject to the tax ... may use a state tax apportionment for its gross sales consistent with the Multistate Tax Compact, [Sections] 32.200, et seq.”

Following the court’s entry of judgment, Hazelwood appealed.

Standard of Review

Hazelwood argues that the trial court lacked subject-matter jurisdiction with respect to all four counts of Ford’s Petition and contends that our standard of review is de novo. Ford does not dispute Hazelwood’s characterization of the issues as implicating subject-matter jurisdiction, but does not agree that our review is de novo. Unquestionably, failure to exhaust administrative remedies deprives the trial court of subject-matter jurisdiction. Toghiyany v. City of Berkeley, 984 S.W.2d 560, 563 (Mo.App. E.D.1999). Here, the trial court treated Hazelwood’s contention that Ford failed to comply with Section 139.031 as a question of exhaustion and, accordingly, subject-matter jurisdiction. As Ford acknowledges, where the facts relevant to subject-matter jurisdiction are uncontested, the court’s review is de novo. Missouri Soybean Ass’n v. Missouri Clean Water Comm’n, 102 S.W.3d 10, 22 (Mo. banc 2003). Because the facts relevant to Ford’s compliance with Section 139.031 were uncontested, namely, the date Ford remitted its license fee payment and the date Ford filed its written protest, our review is de novo. We also note that where, as here, a trial court is charged with applying statutory requirements, any such application is a question of law rather than fact. Jones v. St. Louis County Police Dep’t, 133 S.W.3d 524, 525 (Mo.App. E.D.2004). Accordingly, on this basis as well, the appropriate standard of review is de novo. Id.

Discussion

We consider Hazelwood’s second point challenging the trial court’s subject-matter jurisdiction first. Hazelwood contends that the trial court erred when it failed to dismiss Ford’s Petition on the grounds that Ford failed to file a written protest concurrently with its March 8th payment of the license fee as required by Section 139.031.1. Ford responds that because it filed its protest letter concurrently with its license application as of the date of the extension for the filing of the application, its protest was timely under Section 139.031.1.

Section 139.031, provides, in relevant part, that a “taxpayer desiring to pay any taxes under protest shall, at the time of paying such taxes, file with the collector a written statement setting forth the grounds on which his protest is based.” (Emphasis added). This section applies “to the assessment of taxes collected by city and municipal tax collectors.” Metts v. City of Pine Lawn, 84 S.W.3d 106, 109 (Mo.App. E.D.2002) (internal citation omitted). Moreover, Section 139.031 has been held to apply to business license fees, and failure to timely file a protest precludes a refund of license fees. General Motors Corp. v. City of Kansas City, 895 S.W.2d 59 (Mo.App. W.D.1995).

It is well-settled that Section 139.031 must be strictly construed and enforced. State ex rel. Nat. Inv. Corp. v. Leachman, 613 S.W.2d 634, 635 (Mo. banc 1981); Stanton v. Wal-Mart Stores, Inc., 25 S.W.3d 538, 541 (Mo.App. W.D.2000); Pac-One, Inc. v. Daly, 37 S.W.3d 278, 281 (Mo.App. E.D.2000). “[T]he statutory sections providing the tax appeal procedure must be meticulously followed.” Adcor Realty v. State Tax Comm’n, 627 S.W.2d 604, 606 (Mo. banc 1982). As the Supreme Court held in Buck v. Leggett, 813 S.W.2d 872, 877 (Mo. banc 1991), “[a] taxpayer’s failure to follow the mandate of [Section 139.031.1] has consistently been held to bar his claim of impropriety of any part of the taxes he has paid.” We likewise have held that “Section 139.031 provides the taxpayer with an exclusive remedy, and therefore, failure to strictly comply with this section bars recovery -of the controverted taxes.” Pac-One, Inc., 37 S.W.3d at 281. Such strict construction advances the purpose of Section 139.031, which we have described as balancing the “interests of taxpayers and collectors by assigning duties and responsibilities to each — and with public policy favoring certainty in revenue collection and discouraging suits for refunds.” Missouri American Water Co. v. Collector of St. Charles County, Mo., 103 S.W.3d 266, 270 (Mo.App. E.D.2003).

The Supreme Court considered the required timing of a protest letter in Leachman, supra. See also B & D Inv. Co., Inc. v. Schneider, 646 S.W.2d 759, 763 (Mo. banc 1983) (“The letter of protest must be filed ‘at the time of paying such taxes’ and a letter filed 10 days after such payment is ineffective.”) There, the taxpayer, who filed a protest letter ten days after the taxpayer’s check for taxes was sent to the taxing authority, argued that although its payment and protest were not concurrent, each occurred prior to the date of delinquency, i.e., the date the taxes were actually due, and therefore its protest was timely for purposes of suit under Section 139.031. See Leachman, 613 S.W.2d at 634-35. The taxing authority responded that Section 139.031.1 mandated concurrent payment and protest as a predicate to further proceedings. See Id. at 635. Agreeing with the taxing authority, the Supreme Court held that “[Section] 139.031.1 does not permit the filing of a protest letter following the date of payment of taxes as a predicate for a successful protest.” Id. Clearly, the Supreme Court in Leachman flatly dismissed the notion, advanced here by Ford, that a protest that does not accompany the taxpayer’s check but is nevertheless filed by the due date for the return (or, as in this case, the application) is timely.

In reaching the result in Leachman, the Court relied on the purpose of Section 139.031.1. Leachman, 613 S.W.2d at 635 n. 3. Rejecting an overly restrictive definition of the word “payment” proffered by the taxpayer, the Court concluded that “the statutory purpose is to meet the needs for administrative control of the payment-protest-impounding sequence of county revenues.” Id. The Court additionally noted that “the statutory scheme is apparently designed to aid the Collector in the task of matching protests with payments and to facilitate that office’s accounting procedures.” Id. at 635. In short, the statute focuses on the actual payment of the funds as the event which triggers the requirement of concurrent protest. If, as occurred here, the taxing authority receives a tax payment without a protest then the “payment-protest-impounding sequence” is disrupted and the statutory scheme is frustrated. See Id. at 635 n. 3

Applying the principles articulated in Leachman, it is clear that the timing of Ford’s protest letter did not comply with Section 139.031.1. Ford sent Hazelwood a check for $2,554,808.00 on March 8, 2002. The amount represented an estimated fee based upon the license fee paid in 2001. Because Hazelwood was unaware that the funds were disputed, Hazelwood did not impound any portion of the fee. Other than the March 8th payment, Ford made no other license fee payment to Hazelwood at any time. Hazelwood assessed no penalties against Ford. When Ford filed its application for a manufacturer’s license on April 15th, no check accompanied it and no payment was made. Rather, in its letter accompanying the application, Ford claimed that it had made an overpayment and “respectfully requests that this amount be returned or, in the alternative, that $1,232,309.00 of its previous payment is made under protest.” (Emphasis added). Having made its only payment to Hazelwood on March 8th, Ford’s license fee was thus, for purposes of Section 139.031.1, paid on March 8th, not April 15th.

Ford argues that because it “filed its protest at the time of its application,” its protest was timely. In essence, Ford contends that the extended due date of the license application triggered the protest rather than the date Ford sent Hazelwood its payment. At the heart of Ford’s argument is a contention that “payment” occurred only when the license application was filed rather than when it sent its check for an estimated license fee to Hazelwood.

In support of its position, Ford relies solely on Hamacher v. Director of Revenue, 779 S.W.2d 565 (Mo. banc 1989), a case construing Section 143.801.1, R.S.Mo 1986, which governs state income tax refund claims. Hamacher does not assist Ford. In Hamacher, our Supreme Court held that, for purposes of an income tax refund claim, the statute of limitation commences from the date the return was due, regardless of whether the return was filed earlier. Id. at 567. Hamacher, does not, however, stand for the proposition that a taxpayer who seeks a refund under Section 139.031 may comply with Section 139.031.1 by filing a protest letter on the date the license application is due following an extension rather than on the date the license fee is paid. Indeed, the federal statutory section the Supreme Court found persuasive in Hamacher, 26 U.S.C. Section 6513, provides, among other things, that an extension to file a return does not extend the time for payment of the tax, consistent with the position Hazelwood maintains here. Although we are not bound by the language in the Internal Revenue Code in interpreting the meaning of the Hazelwood Code and Section 139.031, the Supreme Court, in Hamacher, endorsed consistent interpretation in analogous federal and state contexts. .Ford’s argument that its tax payment was due as of the extended date for filing its application is not consistent with 26 U.S.C. Section 6513.

In addition to its reliance on Hamacher, Ford attempts to distinguish this case from Leachman. First, Ford claims that while the property tax appeal statutes at issue in Leachman can be “harmonized” with Section 139.031.1, the same cannot be said of Hazelwood’s Code. Thus, Ford argues, that under the circumstances, it “did its best to attempt to satisfy the requirements of both [Section] 139.031 and the Code.” However, neither ignorance of Section 139.031’s requirements, confusion, nor circumstances that create obstacles to concurrent payment excuse a taxpayer from literal compliance with Section 139.031. See Pac-One, Inc., 37 S.W.3d at 282 (taxpayer who “had done all it could” not excused from literal compliance); General Motors Corp., 895 S.W.2d at 62 (duty to comply with Section 139.031 not excused by ignorance of its application to specific category of taxes); Leachman, 613 S.W.2d at 635 (difficulties created by third party payment of taxes do not excuse concurrent payment obligations).

Ford also seeks to distinguish Leach-man by contending that the property tax appeal statutes at issue in Leachman do not contain a, provision for payment of a deposit, while the Code, Ford contends, contains such a provision. We disagree. Hazelwood’s Code permits payment of an estimated fee as a prerequisite to the grant of an extension to file a license application. As discussed in greater detail below, an estimated fee remitted to secure an extension to file a license application is not a deposit, but a payment of a tax liability. Having failed to concurrently protest and pay, Ford is in the identical position of the taxpayer in Leachman with respect to Section 139.031.1 compliance.

Nor do we agree, as Ford argues, that to harmonize the Code and Section 139.031.1, we must conclude that Ford’s payment of the estimated fee on March 8th was not a payment simply because Ford had not yet precisely calculated its fee due, after extension, on April 15th. Clearly, the Code requires that to obtain an extension of the filing date for the application, an estimated license fee must be “paid at the time the request for an extension of time is submitted.” Hazelwood Code, Section 605.130 (emphasis added). Moreover, nothing in the Code supports the notion that a grant of an extension to file an application extends the time to pay the fee.

While Missouri courts have not specifically addressed whether an estimated tax payment made with a request for an extension to file a return is a payment or, as Ford argues, a deposit, federal courts have considered analogous issues raised in the context of the Internal Revenue Code. In Blatt v. United States, 34 F.3d 252, 256 (4th Cir.1994), the taxpayer argued that a “good faith” remittance of estate tax did not constitute a payment until the estate tax return was filed. More specifically, the taxpayer argued, as Ford does here, that because the amount of taxes due was not precisely determined at the time the remittance was made, taxes could not have been “paid.” Id. at 256.

Rejecting the taxpayer’s argument, the Fourth Circuit articulated a number of principles we find helpful. First, as a general matter, the Blatt court held that “the lack of a precise calculation of the amount of taxes ... does not indicate that an estimated payment is not a payment of taxes.” Blatt, 34 F.3d at 256. Relying on Internal Revenue Code language, similar to Hazelwood’s Code, that when an extension is sought it must be accompanied by an amount “properly estimated as tax” due, the court further held that the tax liability is created at the time required for the filing of the return, without regard to any extension.

The Blatt court also considered the taxpayer’s purpose in remitting the money. Like Ford, the taxpayer claimed he deposited money to avoid interest and penalties. Blatt, 34 F.3d at 257. In addition, like Ford, the taxpayer sought a refund following the filing of the return, claiming that the remittance was, in large part, an overpayment. Id. at 256. As the Blatt court held, in words equally applicable here, “[i]f the taxpayer treats a remittance ... as an ‘overpayment’ for which he seeks a refund, he himself characterizes the remittance as a payment of taxes.” Id. at 255. By contrast, a deposit “could not, by its very nature, be claimed to be an ‘overpayment’ and therefore subject to a refund.” Id.

The United States Supreme Court has also rejected the position implicit in Ford’s argument that there can be no payment of taxes until the exact amount of tax liability has been assessed. See Baral v. United States, 528 U.S. 431, 120 S.Ct. 1006, 145 L.Ed.2d 949 (2000). More specifically, in Baral, the Supreme Court held that an estimated tax remittance is a payment, rather than a deposit. See Id. at 435-36, 120 S.Ct. 1006. In addition, at least six federal circuits have held that remittances accompanying extension requests are payments. See VanCanagan v. United States, 231 F.3d 1349, 1353 (Fed.Cir.2000); Dantzler v. United States Internal Revenue Service, 183 F.3d 1247, 1252 (11th Cir.1999); Ertman v. United States, 165 F.3d 204, 208 (2d Cir.1999); Ott v. United States, 141 F.3d 1306, 1309-10 (9th Cir.1998); Gabelman v. Commissioner of Internal Revenue, 86 F.3d 609, 612-13 (6th Cir.1996); Weigand v. United States, 760 F.2d 1072, 1074 (10th Cir.1985).

Ford further claims that holding it to the mandated strict construction of Section 139.031.1 would create the impossible situation “of Ford having to request an extension of time to complete its apportionment accounting but know, in advance, the exact amount of the overpayment and refund request, even though that was the reason for the extension.” Ford, however, has failed to indicate how it was precluded from making a protest at the time it paid its estimated tax. Ford was already contemplating renewing its Commerce Clause challenge to the license tax in early 2002. Furthermore, the crux of Ford’s protest is a dispute over the proper valuation methodology for “goods manufactured by [Ford] in the City.” The very nature of Ford’s protest would have allowed it to file a protest with its estimated fee in March 2002. Indeed, Ford does not contend that the apportionment method it used for its license application on April 15, 2002, which was accompanied with a protest, was not available in March 2002, when it paid its estimated fee without a protest.

Ford’s April 15th protest was not timely under Section 139.031.1 because it did not accompany the March 8, 2002 estimated payment. In light of the fact that Ford failed to comply with the requirements of Section 139.031, the trial court erred in awarding Ford a tax refund or declaratory relief under Count II or, in the alternative, Count III. The trial court’s award of in-junctive relief under Count IV is equally flawed. Count IV consists solely of an incorporation of the first three counts of the Petition, each of which sought a tax refund, and a request for declaratory and injunctive relief based on the first three counts. Because the refund counts fail, Count IV, which is identical to the first three counts, with the exception of the request for an injunction, fails as well. See General Motors Corp., 895 S.W.2d at 63 (court declines to reach Commerce Clause issues where recovery barred by failure to timely protest tax under Section 139.031, R.S.Mo).

Conclusion

We reverse and remand for judgment consistent with this opinion.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ„ Concur.

      . All citations to the Revised Statues of Missouri ("R.S.Mo”) are to R.S.Mo 2000 unless otherwise specified.

        . Although Hazelwood raises several points in this appeal, the threshold issue is contained in Hazelwood's second point, which challenges the jurisdiction of the trial court. Accordingly, we forego a detailed recitation of the facts and set forth only those facts that are relevant to this issue.

      . Ford also filed a mandamus petition reiterating the allegations from the Petition and adding that Hazelwood failed to escrow Ford’s disputed tax payment as required by Section 139.031. On Ford’s motion, the mandamus petition was dismissed following judgment in favor of Ford on the tax refund action.

      . We recognize that Missouri income taxpayers may protest a proposed assessment at any time before an assessment is final by filing a written protest with the director of revenue. See Section 143.631, R.S.Mo. However, for a remittance to be treated as a deposit, rather than a payment, it must be accompanied by a written statement which clearly notifies the director of revenue that the funds are to be treated as a deposit. See Section 143.631.3, R.S.Mo. In addition, Section 143.631 distinguishes between the return of a deposit and a claim for a refund. Thus, although Ford relies on Hamacher, it seems unlikely that a court construing state income tax refund claims would countenance Ford's attempt to obtain a refund of funds that were not accompanied by any indication that they were to be treated as anything other than a tax payment, as happened here.

      . It bears noting, however, that in the context of Missouri's income tax, "payment of the estimated income tax or any installment thereof, shall be considered payment[.]” Section 143.541.7, R.S.Mo.

      . In its April 15th protest letter accompanying its license application, Ford characterized as an "overpayment” that portion of its March 8th payment which it sought as a refund.

      . Although the trial court did not specifically reference Count I in the judgment, Count I seeks the identical relief as Counts II and III. Because Section 139.031 (Counts I and II), provides the exclusive statutory remedy for tax refunds, the trial court had no subject-matter jurisdiction with respect to Count I. Ford also states in Point I of its brief that "§ 139.031 was the only remedy in this particular case.”

      . Even if we were to consider the merits of Count IV, we agree with Hazelwood that, based on the trial court’s finding that Ford adopted a three factor state apportionment method in its 2003 license application and paid a $39,799.00 license fee, with no evidence of objection from Hazelwood, Ford has failed to establish the presence of a justiciable controversy sufficient to support declaratory or injunctive relief. See City of St. Louis v. Milentz, 887 S.W.2d 709, 711 (Mo.App. E.D.1994).


text:
    STATE of Missouri, Respondent, v. Ivory Lee HOWARD, Defendant.
    No. ED 83771.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 25, 2005.
    Jo Ann Rotermund, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Ivory Lee Howard (Defendant) appeals from the trial court’s judgment and sentence imposed after a jury found him guilty of one count of first-degree tampering, in violation of Section 569.080 RSMo 2000. The trial court found Defendant to be a prior and persistent offender, subject to an extended term of imprisonment, and sentenced Defendant to ten years’ imprisonment. This appeal follows.

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:
    Johnny L. MURRELL, Appellant, v. CITY OF BERKELEY, Missouri, Respondent.
    No. ED 84448.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 25, 2005.
    Rick Barry, Kevin J. Dolley, St. Louis, MO, for appellant.
    Donnell Smith, St. Louis, MO, for respondent.

      Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Johnny L. Murrell appeals the judgment entered by the circuit court upholding the decision of the City of Berkeley to terminate him from his employment with the City’s Police Department after an administrative hearing before the City of Berkeley Civil Service Board. 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:
    In the Matter of the CARE AND TREATMENT OF Anthony AMONETTE, Appellant.
    No. ED 83903.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 25, 2005.
    Emmett D. Queener, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn R. McCall, Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Appellant Anthony L. Amonette appeals from the judgment entered following a jury’s verdict finding him to be a sexually violent predator as defined under section 632.480(5)(a). 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:
    Dennis W. SANDERS, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 83956.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 25, 2005.

      Maleaner Ryna Harvey, Assistant Public Defender, St. Louis, MO, for appellant.
    Andrea K. Spillars, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Dennis W. Sanders appeals from the judgment denying his Rule 29.15 motion for post-conviction relief without an evi-dentiary hearing. He contends his trial counsel provided ineffective assistance by failing to investigate and call two witnesses who would have provided him a viable defense.

Having reviewed the briefs of the parties and the record on appeal, we conclude the motion court did not clearly err. Rule 29.15(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:
    In re the Interest of C.D.C., D.N.G., and D.L.G., Minors.
    No. ED 84497.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 25, 2005.
    Mary D. Fox, St. Louis, MO, for appellant.
    Donna L. Head, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

P.G. (“Mother”) appeals the judgment terminating her parental rights to C.D.C., D.N.G., and D.L.G. (collectively “Children”). 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:
    STATE of Missouri, Respodent, v. Willie HAYES, Appellant.
    No. ED 84060.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 25, 2005.

      Timothy Forneris, 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., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Willie Hayes (“defendant”) appeals from the judgment entered after a jury convicted him of two counts of robbery in the first degree in violation of section 569.020 RSMo 2000 and two counts of armed criminal action in violation of section 571.015. Defendant was charged as a prior offender. Defendant was sentenced as a prior offender to fourteen years on each count with the sentences to run concurrently. Defendant contends that the trial court erred in denying his motion for acquittal because the State of Missouri (“State”) failed to prove that defendant threatened the immediate use of physical force or displayed a gun. Defendant also argues that the trial court erred in denying his objection to the State’s peremptory strike of an African-American juror.

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

The judgment of the trial court is affirmed in accordance with Rule 30.25(b).


text:
    Timothy FOWLER, Appellant, v. THE CITY OF ST. CHARLES, Respondent.
    No. ED 84786.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 25, 2005.
    Althea P. Johns, St. Louis, MO, for appellant.
    Ivan L. Schraeder, Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Timothy Fowler (“Fowler”) appeals from the judgment of the trial court dismissing his petition for review of an administrative decision.

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

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Ricky L. RULO, Claimant/Appellant, v. SILVERLEAF VACATION CLUB, INC., Employer/Respondent.
    No. ED 84889.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 25, 2005.
    Robert M. Miller, High Ridge, MO, for appellant.
    Christopher E. Patt, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Ricky Rulo appeals the decision of the Labor and Industrial Relations Commission denying an award of compensation. 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:
    Dale W. KASPER, Plaintiff/Appellant, v. Mark SCHUETTE, Mayor Of The City of Moscow Mills, Defendant/Respondent.
    No. ED 84912.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 25, 2005.
    Law Offices of Rick Barry, P.C. & Law Offices of Kevin J. Dolley, LLC, St. Louis, MO, for Appellant.
    John T. Bruere, Troy, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

Dale W. Kasper (Kasper) appeals from the trial court’s judgment granting Mark Schuette’s (Schuette) motion for summary judgment on Kasper’s claims regarding Schuette’s discharge of Kasper from his position as a police officer with the City of Moscow Mills. We affirm.

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. Upon de novo review, we find no genuine issue of material fact or error of law. An extended opinion would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b).

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


author: GEORGE W. DRAPER III, Chief Judge.

text:
    Karen V. ANDERSON, Claimant/Appellant, v. PRO-MOLD, INC., and Division of Employment Security, Respondents.
    No. ED 85174.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 25, 2005.
    Karen V. Anderson, St. Louis, MO, pro se.
    Pro-Mold, Inc., St. Louis, Cynthia A. Quetsch, Jefferson City, MO, for Respondent.
   GEORGE W. DRAPER III, Chief Judge.

Karen Anderson (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) denying her claim for unemployment benefits. The appeal is dismissed.

A deputy of the Division of Employment Security (Division) concluded Claimant was disqualified from receiving unemployment benefits because she left her job voluntarily without good cause attributable to her work or the employer. Claimant filed an appeal with the Appeals Tribunal, who modified the deputy’s decision, but also concluded she had left work voluntarily without good cause attributable to her work or the employer. Claimant filed an application for review by the Commission, which affirmed the decision of the Appeals Tribunal. The Secretary of the Commission certified that she mailed a copy of the Commission’s decision to Claimant on August 13, 2004. Claimant filed a notice of appeal to this Court on September 23, 2004.

This Court has a duty to determine sua sponte whether it has jurisdiction. Rissman v.V S M Abrasives Corp., 136 S.W.3d 851 (Mo.App. E.D.2004). A claimant has twenty days to file an appeal from the Commission’s final decision. Section 288.210, RSMo 2000. A decision becomes final ten days after the date it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the decision was mailed on August 13, 2004. It became final ten days later and the notice of appeal was due twenty days thereafter, on Monday, September 13, 2004. Sections 288.200, 288.210, 288.240, RSMo 2000. Claimant mailed her notice of appeal to the Commission and her letter was postmarked on September 23, 2004, ten days after the notice of appeal was due.

We issued an order directing Claimant to show cause why this appeal should not be dismissed as untimely. Claimant has filed a response in which she argues the merits of her appeal. She offers no explanation for the lateness of her notice of appeal.

Even if Claimant’s appeal has merit, if her notice of appeal is untimely, this Court does not have jurisdiction. An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Thomas v. St. Martin’s Childcare Center, 127 S.W.3d 704, 705 (Mo.App. E.D.2004). Section 288.210 sets forth stringent guidelines for the filing of the notice of appeal and fails to make any provision for late filing. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). Our only recourse is to dismiss her appeal.

The appeal is dismissed for lack of jurisdiction.

LAWRENCE G. CRAHAN and GLENN A. NORTON, JJ., concur.


text:
    Jalena MARTINEZ, Claimant/Appellant, v. LEA-ED, INC., and Division of Employment Security, Respondents.
    No. ED 85205.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 25, 2005.
    Jalena Martinez, St. Louis, MO, for appellant.
    Lea-Ed, Inc., St. Louis, MO, Cynthia A. Quetsch, Jefferson City, MO, for respondent.
   GEORGE W. DRAPER III, Chief Judge.

Jalena Martinez (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) denying her claim for unemployment benefits. The appeal is dismissed.

A deputy of the Division of Employment Security (Division) concluded Claimant was disqualified from receiving unemployment benefits because she left her job voluntarily without good cause attributable to her work or the employer. Claimant filed an appeal with the Appeals Tribunal, who dismissed her appeal after she failed to appear for a hearing. Claimant filed an application for review by the Commission, which affirmed the decision of the Appeals Tribunal. The Secretary of the Commission certified that she mailed a copy of the Commission’s decision to Claimant on April 21, 2004. Claimant filed a notice of appeal to this Court on September 28, 2004.

A claimant has twenty days to file an appeal from a final decision of the Commission. Section 288.210, RSMo 2000. The Commission’s decision becomes final ten days after the date it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the Secretary for the Commission mailed its decision to Claimant on April 21, 2004. The decision became final ten days later and the notice of appeal was due twenty days thereafter. Sections 288.200, 288.210. Claimant mailed her notice of appeal to the Commission and her letter was postmarked on September 28, 2004, well after the notice of appeal was due.

This Court has a duty to determine sua sponte whether it has jurisdiction. Rissman v. V S M Abrasives Corp., 136 S.W.3d 851 (Mo.App. E.D.2004). We issued an order directing Claimant to show cause why this appeal should not be dismissed as untimely. Claimant has filed a response. She asks this court to consider the merits of her appeal, despite its lateness, because she believes her unemployment was denied for discriminatory reasons. She asks this court to reconsider applying section 288.210.

An untimely notice of appeal in an unemployment case deprives this Court of jurisdiction to entertain the appeal. Thomas v. St. Martin’s Childcare Center, 127 S.W.3d 704, 705 (Mo.App. E.D.2004). Even though Claimant’s appeal may have merit, if her notice of appeal is untimely, this Court does not have jurisdiction. Section 288.210 sets forth stringent guidelines for the filing of the notice of appeal and fails to make any provision for late filing. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000). Our only recourse is to dismiss her appeal.

In addition, Claimant’s request that we “reconsider” section 288.210, is one more properly for the legislature. The unemployment provisions for appeals are purely creatures of statute. If a statute needs an amendment, the legislature is the one to do it.

The appeal is dismissed for lack of jurisdiction.

LAWRENCE G. CRAHAN, J., and GLENN A. NORTON, J., concur.


author: GEORGE W. DRAPER, III, Chief Judge.

text:
    Cheryl FLOWERS, Claimant/Appellant, v. I CARE CNA SERVICES, INC., and Division of Employment Security, Respondents.
    No. ED 85308.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 25, 2005.

      Cheryl Flowers, St. Louis, MO, pro se.
    Cynthia A. Quetseh, Jefferson City, MO, for respondent.
   GEORGE W. DRAPER, III, Chief Judge.

Cheryl Flowers (Claimant) appeals from the Labor and Industrial Relations Commission (Commission) decision denying her application for review as untimely. We dismiss the appeal for lack of jurisdiction.

After a deputy of the Division of Employment Security (Division) determined that Claimant was disqualified from receiving unemployment benefits, Claimant appealed to the Appeals Tribunal. After a hearing, the Appeals Tribunal affirmed the deputy’s decision. The Appeals Tribunal mailed its decision to Claimant on July 21, 2004. Claimant filed an application for review with the Commission on September 8, 2004. The Commission denied the application for review, concluding it was untimely under section 288.200, RSMo 2000. Claimant now appeals to this Court.

Claimant has only thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Section 288.200.1. Here, the Appeals Tribunal certified that it mailed its decision to Claimant on July 21, 2004. Therefore, Claimant’s application for review to the Commission was due thirty days later, on August 20, 2004. Section 288.200.1. Claimant’s application for review to the Commission was postmarked September 8, 2004, beyond the 30-day time limit. Therefore, Claimant’s application for review was untimely.

This Court has a duty to examine its jurisdiction sua sponte. Thomas v. St. Martin’s Childcare Center, 127 S.W.3d 704, 705 (Mo.App. E.D.2004). We issued an order directing Claimant to show cause why this appeal should not be dismissed. She states that two letters were misdirected to her neighbor, who did not give them to her for a few days.

While we may sympathize with Claimant’s plight, the timely filing of an application for review in an unemployment case is jurisdictional and requires strict compliance. Haislar v. Haislar Const. Co. Inc., 142 S.W.3d 210, 212 (Mo.App. E.D.2004). Despite Claimant’s reasons for her late filing, her failure to file a timely application for review divests the Commission and this Court of jurisdiction. Mack v. Social Sec. Admin., 141 S.W.3d 85, 86 (Mo.App. E.D.2004).

The Claimant’s appeal is dismissed for lack of jurisdiction.

LAWRENCE G. CRAHAN, J., and GLENN A. NORTON, J„ concur.


author: GEORGE W. DRAPER III, C.J.

text:
    John BUFF, Appellant, v. Donald ROPER, Respondent.
    No. ED 85318.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 25, 2005.
    John Buff, No. 185127, Potosí Correction Center, Mineral Point, pro se.
    Andrew W. Hassell, Jefferson City, MO, for Respondent.
   GEORGE W. DRAPER III, C.J.

John Buff (Appellant) appeals from a judgment denying his petition for writ of habeas corpus. Appeal dismissed.

Initially, this Court must determine whether it has jurisdiction. If we lack jurisdiction to entertain an appeal, then it should be dismissed. Fischer v. City of Washington, 55 S.W.3d 372, 377 (Mo.App. E.D.2001). Here, Appellant seeks to appeal from the circuit court’s judgment denying his petition for writ of habeas corpus. An appeal does not lie from the denial of a petition for habeas corpus. Blackmon v. Missouri Board of Probation and Parole, 97 S.W.3d 458 (Mo. banc 2003); McDermott v. State, 120 S.W.3d 261, 262 (Mo.App. E.D.2003).

We issued an order directing Appellant to show cause why his appeal should not be dismissed. In response, Appellant filed his Appellant’s Brief that argues the merits of his appeal. Appellant offers no argument about the judgment’s appealability. To the extent that Appellant may be arguing that he is entitled to review because he is making a claim of actual innocence, he offers no legal support for this assertion. Indeed, a petitioner’s remedy where a petition for writ of habeas corpus is denied is to file a new writ petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo.App. E.D.2003). Appellant has not filed a new writ petition.

The appeal is dismissed for lack of an appealable judgment.

LAWRENCE G. CRAHAN, J. and GLENN A. NORTON, J., concur.


text:
    Eva WAUGH, Plaintiff/Appellant, v. VANTAGE HOMES, INC., et al., Defendants/Respondents.
    No. ED 85437.
    Missouri Court of Appeals, Eastern District, Division Five.
    Jan. 25, 2005.

      Lee R. Elliott, Troy, MO, for appellant.
    Philip J. Christofferson, St. Louis, MO, for respondent.
    Joel D. Brett, St. Charles, MO, for defendant.
   GEORGE W. DRAPER III, Chief Judge.

Eva Waugh (Appellant) appeals from the trial court’s judgment granting the motion for summary judgment of Vantage Home (Respondent). Because there is no final, appealable judgment, we dismiss the appeal.

Appellant brought suit against multiple defendants to recover for trespass and for damages to her property that occurred while the defendants were building a home in an adjoining lot. She later filed an amended petition in which she made claims against Vantage Homes, Inc. (Respondent), Frank Martel, Christopher Rose-man, and Mrs. Christopher Roseman. On September 21, 2004, the trial court entered an “Order of Partial Summary Judgment.” The court granted Respondent’s motion for summary judgment, but denied Martel’s motion for summary judgment. Appellant filed this appeal from the 9/21/04 partial summary judgment.

Respondent has filed a motion to dismiss the appeal for lack of a final, appealable judgment. Respondent has also filed a motion for sanctions for frivolous appeal under Rule 84.19. Appellant has not filed a response.

An appellate court only has jurisdiction over final judgments that dispose of all parties and claims in the case and leave nothing for future determination. American Family Mut. Ins. Co. v. Lindley, 112 S.W.3d 449, 451 (Mo.App. E.D.2003). Any adjudication of fewer than all claims or all parties does not terminate the action, which makes it subject to revision by the trial court at any time until final judgment. Rule 74.01(b); Goodson v. National Sports and Recreation, Inc., 136 S.W.3d 98, 99 (Mo.App. E.D.2004). The trial court may certify for appeal a judgment as to fewer than all claims by expressly designating that “there is no just reason for delay.” Id.

Here, Appellant’s claims against Frank Martel and the Rosemans remain pending in the trial court. The trial court has only ruled on the Respondent’s motion and only entered a partial summary judgment. In addition, the trial court did not expressly designate in its judgment that “there is no just reason for delay.” Therefore, the court’s order is still subject to revision and is not a final, appealable judgment. Accordingly, the appeal must be dismissed for lack of a final judgment. Id.

Respondent’s motion to dismiss is granted. The appeal is dismissed without prejudice for lack of a final, appealable judgment. Respondent’s motion for sanctions is also granted. In this case, it is obvious that there is no final, appealable judgment. Appellant filed no response to Respondent’s motion to dismiss or to its motion for sanctions. Despite Respondent’s request, Appellant refused to dismiss the appeal or attempt to have the trial court’s judgment certified under Rule 74.01(b). Appellant is directed to pay-sanctions in the amount of $250 to Respondent’s attorney for his legal work in preparing a motion to dismiss the appeal. Said payment shall occur within 30 days of the issuance of the mandate of this Court.

LAWRENCE G. CRAHAN and GLENN A. NORTON, JJ., concur.


author: GLENN A. NORTON, Presiding Judge.

text:
    Robert G. ARMISTEAD, Jr., Appellant, v. A.L.W. GROUP, Mark A. Witt, Tina M. Witt and Boogies, Inc., Respondents.
    No. ED 84482.
    Missouri Court of Appeals, Eastern District, Division Five.
    Feb. 1, 2005.
    See also 60 S.W.3d 25.

      Timothy J. Melenbrink, Union, MO, for respondents.
    Cynthia S. Holmes, Clayton, MO, for appellant.
   OPINION

GLENN A. NORTON, Presiding Judge.

Robert Armistead appeals the judgment dismissing his claims against Tina Witt and Boogies, Inc. We reverse in part and affirm in part.

I. BACKGROUND

In 1990, Armistead entered a partnership agreement with Mark Witt and his brothers. Armistead withdrew from the partnership in 1991. The remaining partners notified Armistead of their intent to exercise their option under the agreement to purchase the withdrawing partner’s interest. According to the agreement, the buy-out was to occur by January 1992, but it never did. The agreement mandated that failure to purchase the withdrawing partner’s interest would result in the dissolution and liquidation of the partnership. Thereafter, the partnership’s activities were to be limited to winding-up its affairs; that is, selling the partnership’s assets and distributing the proceeds to the partners. The partners did not, however, proceed with - proper dissolution. In 1999, Mark Witt and his wife, Tina Witt, acquired the other Witt brothers’ interests in the partnership. In 2000, Armistead filed a petition against the Witt brothers — but not Tina Witt — alleging that the partners had breached the agreement by failing to buy him out or dissolve the partnership. That petition was dismissed on grounds that it was barred by the five-year statute of limitations. On appeal, this Court reversed and remanded, holding that the ten-year statute of limitations applied. Armistead v. A.L.W. Group, 60 S.W.3d 25, 26 (Mo.App. E.D.2001). On remand, Ar-mistead voluntarily dismissed his petition. In 2002, Mark and Tina Witt wound-up the partnership and sold the business to Boogies, Inc.

In 2003, Armistead filed the instant petition. He asserts a claim for breach of contract stemming from the failed buy-out, seeking the purchase price due to him under the agreement. He also asserts claims against Mark and Tina Witt for breach of the partnership agreement and of their fiduciary duties resulting from their failure to pay him his share of the winding-up proceeds. The petition also includes a count for interpleader against Boogies, in which Armistead seeks an order to pay into the court those sums due under the promissory note Boogies tendered for the sale of the partnership’s business. Tina Witt moved to dismiss the claims against her on the ground that they were barred by the ten-year statute of limitations and failed to state any claim. Boogies moved to dismiss the interpleader count against it for failure to state a claim. The court granted both motions, and Armi-stead appeals.

II. DISCUSSION

A motion to dismiss for failure to state a claim is solely a test of the adequacy of the plaintiffs petition; therefore, on appeal, we accept as true all well-pled allegations in the petition and liberally grant the plaintiff all reasonable inferences drawn therefrom. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993); see also Freeman v. Leader National Insurance Co., 58 S.W.3d 590, 596 (Mo.App. E.D.2001). We also consider exhibits attached to the petition — here, the partnership agreement — as part of the allegations. Suburban Business Products, Inc. v. T.E. Schmitt Co., 796 S.W.2d 77, 78 (Mo.App. E.D.1990); Rule 55.12 (2003). This Court does not attempt to weigh whether the alleged facts are credible or persuasive. Nazeri, 860 S.W.2d at 306. “Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause, of action, or of a cause that might be adopted in that case.” Id.

A. Breach of Contract and Fiduciary Duty

Tina Witt contends that Armi-stead’s only cause of action relating to this partnership agreement accrued when the buy-out failed in 1992, and that no new or continuing cause of action arose against Tina Witt when she became a partner in 1999. Thus, she contends, the claims filed against her in 2003 are barred by the ten-year statute of limitations. “If it clearly appears on the face of the petition that the cause of action is barred by the applicable statute of limitations, the motion to dismiss is properly sustained.” Armistead, 60 S.W.3d at 26 (citing City of Ellisville v. Lohman, 972 S.W.2d 527, 530 (Mo.App. E.D.1998)).

We agree, and Armistead concedes, that Tina Witt cannot be held liable for, and damages cannot be sought from her as a result of, the Witt brothers’ failure to buy Armistead out in 1992. To the extent that Counts I and II could be construed as attempting to do so, they cannot be maintained against Tina Witt. But the other claims asserted against her are not based on the failed buy-out. Rather, in Counts III through VI, Armistead alleges that Mark and Tina Witt breached the agreement and their fiduciary duties by fading to pay Armistead his share of the partnership interests upon winding-up the partnership in 2002. These claims do not arise from the Witt brothers’ failure to buy him out in 1992 and are distinct from those seeking to recover the purchase price of that failed buy-out. The breach and damage resulting from Mark Witt’s and Tina Witt’s conduct as alleged in these claims was not ascertainable until the business was sold to Boogies in 2002. That is when this cause of action accrued and the statute of limitations began to run. See section 516.100 RSMo 2000; Goodkin v. 8182 Mainland Associates Limited Partnership, 80 S.W.3d 484, 488 (Mo.App. E.D.2002) (damage is “capable of ascertainment” when a plaintiff with a recognized legal theory of recovery sustains compen-sable damages). Thus, these claims filed just one year later were timely.

It does not clearly appear from the face of the petition that the claims stated against Tina Witt in Counts III through VI are barred by the applicable statutes of limitations. Tina Witt does not contest on appeal that the petition otherwise sets forth the elements of a cause of action for breach of contract and for breach of a fiduciary duty. Armistead alleges the existence of the partnership agreement, breach thereof and damages resulting from the breach; and he asserts the existence of a fiduciary duty on the part of the Witts, breach thereof and damages resulting from the breach. See generally Rice v. West End Motors, Co., 905 S.W.2d 541, 542 (Mo.App. E.D.1995) (elements of a breach of contract action); Preferred Physicians Mutual Management Group v. Preferred Physicians Mutual Risk Retention, 918 S.W.2d 805, 810 (Mo.App. W.D.1996) (elements of a breach of fiduciary duty action). Thus, the motion to dismiss should not have been granted as to Counts III through VI. Armistead’s points I and II on appeal are granted to that extent. Dismissal of the claims set forth against Tina Witt in Count I, however, was proper.

B. Interpleader

Armistead argues that the trial court erred in dismissing his claim for interpleader against Boogies. To state a claim for interpleader, the petition must contain allegations that: (1) two or more persons have claims against the plaintiff and (2) the claims are such that the plaintiff is, or may be, exposed to double or multiple liability. Commercial Bank of St. Louis County v. James, 658 S.W.2d 17, 22 (Mo. banc 1983); see also Green Valley Seed, Inc. v. Plenge, 72 S.W.3d 601, 603-04 (Mo.App. E.D.2002); section 507.060; Rule 52.07. Interpleader “compels two or more defendants to litigate claims against a plaintiff.” James, 658 S.W.2d at 22. “Although the interpleader plaintiff need not set forth the defendants’ claims with as much accuracy as the claimants themselves would do, he must do more than merely state two conflicting claims have been made; he must state facts showing the nature of the claims.” Id.

In his petition, Armistead alleges that he and the Witts have competing claims against Boogies for payments due the partnership under the promissory note. Armistead does not allege that anyone has competing claims against him. Nevertheless, he contends that Boogies’s decision not to file its own interpleader action should not preclude Armistead from seeking a court order to preserve the funds in which, he claims, both he and the Witts have an interest. He relies on Roosevelt Savings and Loan Association v. First National Bank of Clayton, 614 S.W.2d 289 (Mo.App. E.D.1981). In Roosevelt, the plaintiff-bank was .subject to claims by two persons as to the remaining balance of an account held by the bank. Id. at 290-91. This Court concluded that interpleader was appropriate, even though the bank itself had an interest in a portion of that account. Id. at 291. At most, Roosevelt recognized a modification to the common law requirement that the plaintiff be an “innocent stakeholder.” Id. It did not eliminate, however, the requirement that to state a claim for interpleader the plaintiff must be subject to competing claims. There being no such allegations here, and no other basis for a cause of action against Boogies, the claims against it were properly dismissed.

Point III is denied.

III. CONCLUSION

To the extent that the judgment dismisses the claims stated against Tina Witt in Counts III through VI of the petition, it is reversed, and the' case is remanded for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.

ROBERT G. DOWD, JR., J. and MARY K. HOFF, J., concurring.

      . All rule references are to Missouri Supreme Court Rules (2003).

      . Although in his opening brief to this Court, Armistead argued that Count I includes a claim against Tina Witt for her failure to distribute the partnership’s business profits from the time she became a partner in 1999 until the business was sold in 2002, the only relief sought in that count is the purchase price due to him under the buy-out provisions of the agreement.

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

      .As was held in Armistead, the applicable limitations period on a breach of contract action in which the plaintiff seeks the payment of money due under a written contract is ten years. 60 S.W.3d at 26-27 (citing section 516.110.1). The applicable limitations period on a breach of fiduciary duty claim, however, appears to be five years. See Klemme v. Best, 941 S.W.2d 493, 497 (Mo. banc 1997) (citing section 516.120(4) RSMo 1986).


text:
    In the Interest of T.M.W.
    No. ED 84456.
    Missouri Court of Appeals, Eastern District, Division Five.
    Feb. 1, 2005.
    Connie S. Hood, Clayton, MO, for appellant.
    Karen A. Siegel, St. Louis, MO, for respondent.
    Ashley R. Beumer, St. Louis, MO, for Guardian Ad Litem for Juvenile.
    Before GEORGE W. DRAPER III, C.J., CLIFFORD H. AHRENS, J. and GLENN A. NORTON, J.
   ORDER

PER CURIAM.

Jeannie Williams (“Mother”) appeals the judgment terminating her parental rights with respect to T.M.W., who was born premature and exposed to cocaine. Mother’s rights have been terminated with respect to all six of her other children as well. The trial court found that termination was necessary to serve the best interests of the child based on several of the statutory grounds set forth in section 211.447.4, RSMo 2000.

We have reviewed the parties’ briefs and the record on appeal and find no error of law. The judgment is supported by substantial evidence and is not against the weight of the evidence. An extended opinion would have no precedential value. The judgment is affirmed under Rule 84.16(b).


text:
    Ronald VINCENT, Appellant, v. STATE of Missouri, Respondent.
    No. ED 83304.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 1, 2005.
    S. Paige Canfield, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GLENN A. NORTON, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Ronald Vincent (“Movant”), appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. After a jury trial, Movant was convicted of one count of robbery in the first degree, section 569.020 RSMo 1994, and one count of armed criminal action, section 571.015. Movant was sentenced to concurrent terms of ten years imprisonment on each count. We affirm.

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

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


text:
    Randall J. RAINWATER, Appellant, v. SHADE TREE SERVICES COMPANY, Respondent.
    No. ED 84695.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 1, 2005.

      Robert M. Miller, High Ridge, MO, for appellant.
    H. Kent Munson, St. Louis, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Randall Rainwater appeals the judgment of the Circuit Court of St. Louis County granting Shade Tree Services Company’s Motion for Summary Judgment. Rainwater contends that the Circuit Court erred when it granted Shade Tree’s Motion for Summary Judgment on the grounds that a final and binding resolution of his discharge grievance precluded suit under Section 287.780 RSMo 2000.

We have reviewed the briefs of the parties and the record on appeal and find no error in any of the respects alleged. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.

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