author: JOSEPH M. ELLIS, Judge.

text:
    INDEPENDENCE-NATIONAL EDUCATION ASSOCIATION (“INEA”), Independence-Transportation Employees Association (“ITEA”), Independence-Educational Support Personnel (“IESP”), Wendy Biggerstaff, Gene Hope, Elizabeth Scott, Richard Jones, Randi Louise Mallett, Ron Cochran, and Jack Cobb, Appellants, v. INDEPENDENCE SCHOOL DISTRICT, Respondent.
    No. WD 63697.
    Missouri Court of Appeals, Western District.
    Jan. 18, 2005.
    Motion for Transfer to Supreme Court Denied March 1, 2005.
    Application for Transfer Denied May 31, 2005.

      Sally E. Barker, St. Louis, MO, for appellants.
    Duane A. Martin, Kansas City, MO, for respondent.
    Before JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge and LISA WHITE HARDWICK, Judge.
   JOSEPH M. ELLIS, Judge.

Appellants, who are various employees of Respondent Independence School District (“the District”) and unions representing employees within the District, appeal from the trial court’s decision to sustain a motion for summary judgment filed by the District.

The District is a public school district located in Jackson County, Missouri. The District is governed by an elected, seven-person Board of Education (“the Board”). The District employs a significant number of people, including teachers, bus drivers, transportation workers, custodians, maintenance personnel, and paraprofessionals.

Appellants are comprised of four separate categories of those employees and their respective unions: (1) transportation employees, who are member of the Independence Transportation Employees Association (“ITEA”); (2) custodial and maintenance employees, who are members of the Independence Educational Support Personnel (“IESP”); (3) teachers, who are members of the Independence National Education Association (“INEA”); and (4) paraprofessionals, who are also members of INEA.

On April 23, 2002, after having conducted two open meetings with employees to discuss such a policy, the Board adopted a “collaborative team process” for negotiating with employee groups in which multiple employee groups would be represented on a single “collaborative team” that would address employment issues. The collaborative team was to be comprised of six teacher representatives, one representative from each of six other employee groups (bus drivers, custodians, paraprofessionals, secretaries, nurses, and nutrition service employees), six District administrators, and two members of the board of education. Those members were to be provided with training in team building and cooperative decision-making. The collaborative team was to operate under the direction of an outside facilitator. After the collaborative team reached a consensus on an issue under discussion, such as work environment, benefits or compensation, a recommendation would be provided to the Superintendent. The Superintendent would then present the team’s recommendation to the Board along with his own recommendation on whether to adopt, modify, or reject the team’s recommendation, and the Board would subsequently adopt, modify, or reject the team’s recommendation.

Previously, District representatives had discussed employment issues one-on-one with the exclusive bargaining representative for the transportation employees (ITEA) and the exclusive bargaining representative for the custodial and maintenance employees (IESP), and the proposals resulting from those one-on-one discussions had been forwarded to the Board. District representatives had also held separate discussions with the “recognized group” for the majority of the teachers (INEA) pursuant to a “Discussion Procedure for Salary, Benefits and Policy Proposals” that had been adopted by the Board in the late 1970s. The Board rescinded that Discussion Procedure when it adopted the collaborative team process.

Subsequent to the Board’s adoption of the collaborative team process, Appellants filed a petition for declaratory judgment and injunctive relief in the Circuit Court of Jackson County. In general, Appellants alleged that the District failed to comply with Missouri’s Public Sector Labor Law, § 105.500 et seq., by adopting the collaborative team process and refusing to meet- and confer separately with the ITEA, IESP, and INEA as the exclusive, bargaining representatives for the transportation employees, custodial and maintenance employees, and paraprofessionals. Appellants also claimed that the District had improperly failed to meet and confer with these groups about the collaborative team process prior to its adoption by the Board. Appellants also asserted that the foregoing actions violated the terms of the Memoran-da of Understanding that the District had with the ITEA and IESP. Appellants further contended that the District violated the Discussion Procedure that it had agreed upon with the teachers and District policy when it adopted the collaborative team process.

On October 29, 2008, the District filed is Motion to Dismiss or in the Alternative Motion for Summary Judgment. On December 2, 2003, Appellants filed a Cross-Motion for Summary Judgment. On December 10, 2003, the trial court sustained the District’s motion for summary judgment and denied Appellants’ motion. Appellants bring four points on appeal from that judgment.

We first address Appellants’ final two points. In their third point, Appellants ask this Court to reverse the Missouri Supreme Court’s decision in City of Springfield v. Clouse, 356 Mo. 1239, 206 S.W.2d 539 (1947), holding that Article I, Section 29 of the Missouri Constitution, which grants employees “the right to organize and to bargain collectively through representatives of their own choosing,” does not apply to public employees. In their fourth point, Appellants ask this Court to reverse the decision of the Missouri Supreme Court in Sumpter v. City of Moberly, 645 S.W.2d 359 (Mo. banc 1982), holding that a memorandum of understanding that was approved by a legislative body does not constitute a binding collective bargaining agreement. Appellants contend that these cases and their progeny were wrongly decided.

A claim that the Missouri Supreme Court has incorrectly decided a previous case or cases is not cognizable in the Missouri Court of Appeals. State v. Patterson, 18 S.W.3d 474, 481 (Mo.App. S.D.2000). “This court is constitutionally bound to follow the most recent controlling decision of the Missouri Supreme Court.” Kinder v. Missouri Dep’t of Corr., 43 S.W.3d 369, 374 (Mo.App. W.D.2001) (citing Mo. Const, art. V, § 2). Points denied.

We now turn to Appellants’ first two points challenging the propriety of the trial court’s entry of summary judgment in favor of the District. The entry of summary judgment is proper “if ‘the motion, the response, [and] the reply ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” International Bhd. of Elec. Workers, Local Union No. 53 v. City Power & Light Dep’t, 129 S.W.3d 384, 386 (Mo.App. W.D.2003) (quoting Rule 71.01(c)(6) ). Our review of the trial court’s grant of summary judgment is essentially de novo. Id. We review the record in the light most favorable to the party against whom judgment was entered, giving that party the benefit of all reasonable inferences that may be drawn from the record. Id. “Only when the evidence, viewed in that light, shows that the movant is entitled to judgment as a matter of law, may we affirm. If there remains a genuine dispute of material fact, summary judgment is inappropriate, and we must reverse.” Rodgers v. Threlkeld, 80 S.W.3d 532, 534 (Mo.App. W.D.2002).

In their first point, Appellants contend that the trial court erred in granting the District’s motion for summary judgment because the collaborative team approach improperly imposed a joint bargaining procedure upon the various exclusive bargaining representatives and that the District has failed to meet and confer with ITEA, IESP, and INEA separately, which they claim is required by § 105.520. Appellants further claim that the District improperly failed to meet and confer separately with representatives from these unions prior to adopting its collaborative team approach. Appellants also argue that the District improperly refused to present proposals that had previously been agreed upon in accordance with the old negotiation procedure to the Board of Education.

Under Missouri’s Public Sector Labor Law, “Employees, except police, deputy sheriffs, Missouri state highway patrolmen, Missouri national guard, all teachers of all Missouri schools, colleges and universities, of any public body shall have the right to form and join labor organizations and to present proposals to any public body relative to salaries and other conditions of employment through the representative of their own choosing.” § 105.510. Section 105.520 provides:

Whenever such proposals are presented by the exclusive bargaining representative to a public body, the public body or its designated representative or representatives shall meet, confer and discuss such proposals relative to salaries and other conditions of employment of the employees of the public body with the labor organization which is the exclusive bargaining representative of its employees in a unit appropriate. Upon the completion of discussions, the results shall be reduced to writing and be presented to the appropriate administrative, legislative or other governing body in the form of an ordinance, resolution, bill or other form required for adoption, modification or rejection.

The foregoing statutory provisions give public employees (with certain exceptions) a “ ‘vehicle for petitioning their employer through their designated representative.’ ” Sumpter, 645 S.W.2d at 362 (quoting Curators of the Univ. of Mo. v. Public Serv. Employees Local No. 45, 520 S.W.2d 54, 57 (Mo. banc 1975)). “ ‘When this representative submits proposals and grievances relative to salaries and other conditions of employment, the public body or its designated representative must acknowledge such proposals and grievances and must discuss them with the bargaining representative.’ ” Id. (quoting Curators of the Univ. of Mo., 520 S.W.2d at 57); See also Kinder v. Holden, 92 S.W.3d 793, 797 (Mo.App. W.D.2002).

Thus, “[t]he Public Sector Labor Law requires the public body, or its representative, to meet, confer and discuss proposals about salary and conditions of public employment with the exclusive bargaining representative of its employees.” International Bhd. of Elec. Workers, Local Union No. 53, 129 S.W.3d at 390. “Upon the completion of such discussions, the results must be reduced to writing and presented to the appropriate body for adoption, modification, or rejection.” Kinder, 92 S.W.3d at 797.

ITEA, IESP, and INEA are the exclusive bargaining representatives for their respective employee group, certified as such by the state board of mediation as provided in § 105.525. Accordingly, under the Public Sector Labor Law, the District is required to meet, confer, and discuss with those representatives regarding any proposals or grievances they have related to salary or other conditions of employment.

In its motion for summary judgment, the District asserted that, under its collaborative team approach, members of the collaborative team could submit proposals of their own to the team and that proposals specific to a specific employee unit could be discussed in a sub-team comprising only the exclusive bargaining representative and the District’s representatives. In their response to the District’s motion for summary judgment, Appellants denied those factual assertions with specific reference to discovery, exhibits, or affidavits supporting their denial. Appellants contended that team members were not allowed to present proposals of their own to the team and that they did not have the ability to break into sub-teams to discuss issues specific to their employee group with District representatives. Appellants also asserted that they were not allowed to present proposals to the District outside of the collaborative team process.

Thus, Appellants and the District dispute whether representatives on the collaborative team were allowed to present proposals to the team or the District. This factual dispute between the parties is material to the claims before the trial court. If the collaborative team approach does not allow the various exclusive bargaining representatives to present proposals of their own to the team or directly to the District, that process clearly violates the provisions of the Public Sector Labor Law requiring the District to entertain proposals and grievances offered by employee representatives and to discuss those proposals with the representative.

As there clearly remains a dispute between the parties as to this material fact, the trial court could not properly have entered summary judgment on the claims asserted by the non-teacher employees and their respective unions in counts I, II, and III of their petition. Accordingly, we must reverse the trial court’s judgment as to those counts and remand the cause for further proceedings on those claims.

In their remaining point on appeal, Appellants assert that the trial court erred in granting summary judgment in favor of the District regarding the claims made by the teachers and their union, the INEA, in count IV of Appellants’ petition. Appellants contend that the District violated the Discussion Procedure that it had agreed upon for negotiating with the teachers in the district. Appellants argue that discussion procedures like the one at issue have been held to be binding on school districts under existing case law. Appellants further claim that the District failed to bargain with the INEA over the collaborative team approach prior to its adoption in violation of the Discussion Procedure and failed to present proposals that had previously been agreed upon pursuant to the Discussion Procedure to the Board for approval.

In their petition, Appellants alleged that the District, the teachers, and the INEA in its role as the Recognized group for the District’s teachers had a longstanding agreement, reached during negotiations between the teachers and the District in the late 1970s, to meet, confer, and discuss proposals concerning teachers. Appellants contended that the Board adopted the agreed upon Discussion Procedure and included it within the “Policies of the Board of Education,” specifically designated as § IV-K-2 thereof. Appellants noted that this procedure was followed until April 23, 2002, when the Board voted to rescind it and replace it with the collaborative team process.

On appeal, we must consider whether the trial court could have properly granted summary judgment on any of the grounds asserted in the District’s motion. In one of its arguments for summary judgment, the District claimed that Appellants failed to sufficiently plead that a binding agreement existed between the District and the teachers regarding the Discussion Procedure because Appellants “failed to plead the statutory and traditional prerequisites to a valid binding contract” and that any agreement “therefore violates the statute of frauds.” The District asserted that Appellants’ petition failed to establish that any agreement between the District and the teachers complied with the provisions of § 432.070, which sets forth the statutory prerequisites for contracts with cities, towns, municipal corporations, and school districts.

The District’s claims of illegality and failure to comply with the statute of frauds, however, are affirmative defenses to Appellants’ claims rather than pleading requirements that Appellants were obliged to satisfy. See Crawford v. Detring, 965 S.W.2d 188, 191 (Mo.App. E.D.1998); Boone Nat’l Sav. & Loan Ass’n v. Crouch, 47 S.W.3d 371, 375 (Mo. banc 2001); Rule 55.08. While summary judgment may be properly entered where a defendant establishes its right to judgment by showing “that there is no genuine dispute as to the existence of each of the facts necessary to support the [defendants properly-pleaded affirmative defense,” International Bhd. of Elec. Workers, Local Union No. 53, 129 S.W.3d at 387, the District has yet to properly plead, let alone prove, any such affirmative defenses.

Rule 55.08 and Rule 55.27 require a party seeking to raise an affirmative defense to plead that defense in the appropriate responsive pleading — in this instance, the answer to the petition. Rule 55.08 further requires that “[a] pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance.” Rule 55.08.

In the case at bar, the District has not filed an answer to Appellants’ petition. Accordingly, the District has neither denied Appellants’ averment that the Discussion Procedure resulted from an agreement between the District and the teachers nor has it properly pleaded any affirmative defenses to Appellants’ claims.

Moreover, the party asserting an affirmative defense bears the burden of proving that they are entitled to that defense. Smith v. Kriska, 113 S.W.3d 293, 296 (Mo.App. E.D.2003). The District has failed to set forth uncontroverted facts establishing that the agreement between the District and the teachers reached in the 1970s failed to comply with § 432.070 or otherwise violated the statute of frauds. Accordingly, summary judgment could not have been properly entered on Appellants’ claims of illegality and failure to comply with the statute of frauds.

The District also asserted in its motion that summary judgment was appropriate because the terms of the Discussion Agreement do not require it to observe that procedure in adopting a new discussion procedure. The District argued that, because the Discussion Agreement provides that “the recognized group may submit proposals concerning salaries and policy modifications,” the Discussion Agreement only required discussion of proposals proposed by the teachers.

The provision referenced by the District states, in full: “The recognized group may submit proposals concerning salaries and policy modifications as defined in IV-K-2a-7 to the spokesperson of the Board discussion team not later than two weeks prior to the first scheduled meeting of the meet and confer teams. After that date, further proposals shall not be acceptable.” That provision merely sets a deadline for the submission of proposals for discussion by the INEA and does not preclude the discussion of proposals advanced by the District.

The Discussion Procedure provides for “meet and confer” sessions between the District and the recognized group representing the teachers. It provides that “[a]ny consensus reached by discussion teams regarding proposals shall be recorded as a memorandum of understanding, initialed by both teams, a copy provided each initialing team, and subsequently presented to the Board of Education for consideration.” The Discussion Procedure sets out that a “proposal” is “a recommendation relative to changes, additions or deletions to any of the following which are written: policy, rules, orders, administrative regulations and procedures.” The preface to the “Procedures for Communication” contained in Section IV of the Policies of the Board of Education states:

The Board recognizes the importance of responsible participation in decisions pertaining to the educational process, planning, development and growth. To this end, we shall maintain procedures of communication with our certificated employees by exchanging relevant data and points of view, and making proposals in the interest of good faith communication as contained in this policy.

From the foregoing language, it appears that the Discussion Procedure was meant to provide for the discussion of proposals made by the District related to teachers as well as proposals made by the recognized group. It is, at the very least, ambiguous on this issue. Summary judgment could not have been properly entered on this ground.

The final assertion related to the teachers’ claims offered by the District in its motion for summary judgment is a broad claim that, even if an agreement existed between the District and the teachers, as a matter of law the District could change its policy at any time for any reason without discussing the matter with the teachers. That assertion is clearly contrary to the existing case law.

In Finley v. Lindbergh School District, 522 S.W.2d 299, 300 (Mo.App. E.D.1975), the district and board of education appealed from a decision upholding a similar “negotiations agreement” between the district and a teachers’ association. The teachers’ association and the district entered into the “negotiations agreement,” and, subsequently, the board of education advised the association that the district was considering canceling the agreement and ultimately did so by resolution. Id. The teachers’ association then filed an action for declaratory relief seeking a declaration that the agreement was valid and binding, that the cancellation of the contract by the board of education was illegal, and that the district be required to honor the agreement. Id. The Finley court held that the trial court did not err in ordering the district to specifically perform the agreement. Id. at 303. A similar agreement was held to be binding upon a school district in Peters v. Board of Education of Reorganized School District No. 5 of St. Charles County, 506 S.W.2d 429, 432-33 (Mo.1974).

Despite Appellants’ reliance upon these cases before the trial court and on appeal, the District has failed to even mention Finley or Peters in its brief on appeal, let alone attempt to differentiate those cases from the case at bar. We perceive of no readily apparent distinction between the case sub judice and Finley and Peters, provided that a valid contractual agreement is found to have existed between the District and the teachers. Accordingly, the trial court could not have properly entered summary judgment on this basis.

Having reviewed all of the District’s grounds for summary judgment related to the claims of the teachers and the INEA asserted in Count IV of Appellants’ petition, we find that summary judgment could not have properly been entered on any of the grounds asserted.

For the foregoing reasons, we reverse the trial court’s judgment granting the District’s motion for summary judgment as to Counts I, II, III, and IV of Appellants’ petition and remand the cause for further proceedings.

All concur.

      . The INEA was not certified as the exclusive bargaining representative for the paraprofessionals until April 5, 2002, eighteen days prior to the District's adoption of the collaborative team process.

      . In Sumpter v. City of Moberly, 645 S.W.2d 359, 362 (Mo. banc 1982), the Missouri Supreme Court set out the procedure required by the Public Sector Labor Law as follows:
      Generally, the public body will designate a representative to meet with the representative of the employees. In this event, the public body’s representative acts essentially as a hearer and a receptor of the employees’ petitions and remonstrances. His duty is to discuss them with the bargaining representative, and to fully apprise himself of the nature and extent of the proposals and grievances presented. The representative of the public body must then transmit to it, in written form, the proposals and grievances and the substance of the discussions. The public body must then give them its consideration "in the form of an ordinance, resolution, bill or other form required for adoption, modification or rejection.”

        Id. (quoting Curators of the Univ. of Mo., 520 S.W.2d at 57-58).

      . " ‘Exclusive bargaining representative' means an organization which has been designated or selected by [a] majority of employees in'an appropriate unit as the representative of such employees in such unit for purposes of collective bargaining." § 105.500(2).

      . In light of this decision, we need not address whether the District’s collaborative team process complies with the letter and spirit of the Public Sector Labor Law. However, even if the evidence adduced on remand establishes that the exclusive bargaining representatives are indeed allowed to present proposals to the team and to break into sub-teams to discuss various issues, we nevertheless harbor serious reservations as to whether this would be sufficient to comply with the District’s obligation under the law to negotiate with the exclusive bargaining representative of each appropriate employee unit.

      . Count V of Appellants’ petition rests upon their assertion that Clouse was wrongly decided and should be overturned. As noted supra, neither the trial court nor this Court has the authority to overrule a decision issued by the Supreme Court of Missouri. The District was clearly entitled to judgment as a matter of law as to Count V of Appellants' petition under the law as established in Clouse, and the trial court properly entered summary judgment as to that count.

      . Having reached this conclusion, we need not address Appellants’ remaining arguments as to why summary judgment should be reversed. We likewise need not, and do not, review Appellants’ claims that the trial court should have granted their motion for summary judgment as " '[ajbsent special circumstances, we do not review the denial of a motion for summary judgment.’ ” East Attucks Cmty. Hous., Inc. v. Old Republic Sur. Co., 114 S.W.3d 311, 327 (Mo.App. W.D.2003) (quoting In re Estate of Corbin, 66 S.W.3d 84, 94 (Mo.App. W.D.2001)).


source: Caselaw Access Project

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

license: Public Domain

text:
    Roy GEORGE, Respondent/Employee, v. CITY OF ST. LOUIS, Appellant/Employer, and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Respondent.
    No. ED 84730.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied May 31, 2005.

      Robert L. Lying, Deputy City Counsel- or, St. Louis, MO, for appellant.
    David M. Kenyon, Rebecca K. Wright, Asst. Atty. Gen., St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

The City of St. Louis (City) appeals from the decision of the Labor and Industrial Relations Commission (Commission) awarding Claimant total disability benefits and finding no Second Injury Fund (Fund) liability. The Commission reversed the award of the Administrative Law Judge (ALJ) denying benefits to Claimant on the grounds that Claimant failed to show he had been exposed to unusual stress pursuant to Section 287.120.8, RSMo 2000 at his employment with the City. On appeal, the City argues the Commission erred (1) in awarding benefits to Claimant because he failed to meet his burden of proof of a compensable mental injury under Section 287.120.8, (2) in interpreting Section 287.120.10 as exempting firefighters from the extraordinary and unusual work stress requirement under Section 287.120.8, and (3) in finding no Fund liability. We affirm.

Claimant is a sixty-two-year-old man with associate degrees in fire protection and fire safety. At the time of the hearing, Claimant testified he had been placed on disability retirement from his job as Battalion Fire Chief. Claimant testified he served in the Army and was assigned to Vietnam. During his one year tour of duty in Vietnam, Claimant stated he witnessed and was a participant in numerous events that left indelible scars on his memory. He stated he came close to death many times. He witnessed people burning and being blown up by mines. He had to shoot at enemy soldiers who used children as shields.

When Claimant returned from Vietnam, he was treated at the Veterans Administration Hospital (VA) from 1969 until 1972 for post-traumatic stress disorder (PTSD). A social worker commenting on the intake interview with Claimant indicated that he was “quite shaky” and having “bad dreams” as a result of combat in Vietnam.

In 1969, Claimant returned to his old job with the Postal Service. Claimant testified he did not feel the Postal Service was making the best use of his talents and that he wanted to help people. In 1972, around the time he stopped receiving treatment at the VA, Claimant started his career as a firefighter at the rank of private. He worked for the City fire department for twenty five years and ultimately achieved the rank of Battalion Fire Chief. Over the course of his career as a firefighter, he was called to the scene of hundreds of fires.

In approximately 1984, while on duty, Claimant heard the call on the radio that his home was on fire. Both his wife and son were injured but recovered. When he arrived at his home, Claimant saw his wife being removed on a gurney. He initially thought his wife might be dead. After this incident, Claimant began having nightmares and flashbacks to his wartime experiences in Vietnam. Later, in approximately 1995, the home of Claimant’s daughter caught fire. She suffered second and third degree burns.

In addition to the fires in his own home and the home of his daughter, several other work-related incidents exacerbated Claimant’s chronic problem with PTSD and depression. On one occasion, a mother was “hollering about her child being lost upstairs.” Claimant and other firemen looked for the child. When they found the child in the fire, the child was dead. The woman was yelling, “My child, my child.” This event reminded Claimant of an incident in Vietnam where a fellow soldier was burning on the back of a tank and was yelling, “Momma, Momma” and Claimant could not help him. On another occasion, Claimant witnessed an overturned bus with children thrown out around the interstate. Claimant recalled that some of the children were dead. This incident caused Claimant to suffer a flashback to Vietnam when a motorized scooter overloaded with kids passed a group of soldiers, among whom was Claimant. After passing the soldiers, the scooter hit a tank mine and all the children were killed. Two other work incidents occurred shortly before Claimant retired that stuck in his memory: having to deal with the burned and dead bodies of a three-year-old girl and an elderly man in a wheelchair.

In 1989, Claimant came under the medical care of Dr. David Lee Ohlms, a psychiatrist. Dr. Ohlms testified live at the hearing. He testified he diagnosed Claimant as having severe PTSD and major recurrent depression. He explained “[everything that went on in his job ... sort of chipped away at his strength and he became more and more brittle to the traumas of being a fireman.” Dr. Ohlms further explained that with PTSD, the patient should try to avoid situations that make the person relive the same feelings as the flashbacks involve. Dr. Ohlms concluded, however, that Claimant could not avoid such situations because, “He was going to see buildings on fire. He was going to see people injured. He was going to see people dead. And all that added on.”

Dr. Ohlms also discussed the nature of Claimant’s depression and the relationship between the depression and the PTSD. He admitted that medical science cannot explain what causes depression. On the other hand, he stated that PTSD and depression feed on each other and that “it’s almost impossible ... to separate the two.” Dr. Ohlms opined that if Claimant had entered a different profession after Vietnam, he probably would not have been permanently totally disabled.

The ALJ found in favor of the City noting that Claimant had failed to prove “unusual strain” pursuant to Section 287.120.8. The Commission reversed the award of the ALJ and awarded permanent total disability to Claimant and found no Fund liability. This appeal follows.

We review the decision of the Commission pursuant to Section 287.495. We may modify, reverse, remand for hearing, or set aside the Commission’s award only if we find: (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; or (4) that there was not sufficient competent evidence in the record to warrant the making of the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003). We examine the whole record to determine if it contains sufficient competent and substantial evidence to support the Commission’s award. Id. at 222-223. We will set aside the Commission’s factual findings and resulting award if it is contrary to the overwhelming weight of the evidence. Id. We review issues involving questions of law de novo. Section 287.495.1.3 and .4. However, we liberally construe all provisions of the workers’ compensation law to favor the employee. McDermott v. City of Northwoods Police Dept., 103 S.W.3d 134, 138 (Mo.App. E.D.2002).

In addition, the Commission is the ultimate trier of fact. Uhlir v. Farmer, 94 S.W.3d 441, 445 (Mo.App. E.D.2003). Questions regarding medical causation of an injury are issues of fact for the Commission, as are questions regarding medical treatment. Id. The Commission is the sole judge of the weight of the evidence and credibility of the witnesses. Id. It is in the Commission’s sole discretion to determine the weight to be given expert opinions. Id.

In its first point, the City argues the Commission erred in awarding benefits to Claimant because he failed to meet his burden of proof of a compensable mental injury. Specifically, the City contends Claimant failed to prove that the mental injury he suffered resulted from work-related stress considered extraordinary and unusual when measured by objective standards and actual events as required by Section 287.120.8. We disagree.

Workers’ compensation law is entirely statutory, and when interpreting the law, we must ascertain the intent of the legislature by considering the plain and ordinary meaning of the terms and give effect to that intent if possible. Greenlee v. Dukes Plastering Service, 75 S.W.3d 273, 276 (Mo. banc 2002). Sections 287.120.8, .9, and .10, which are often read together, provide as follows:

8. Mental injury resulting from work related stress does not arise out of and in the course of the employment, unless it is demonstrated that the stress is work related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events.
9. A mental injury is not considered to arise out of and in the course of employment if it resulted from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action taken in good faith by the employer.
10. The ability of a firefighter to receive benefits from psychological stress under Section 287.067 shall not be diminished by the provisions of subsections 8 and 9 of this section.

Section 287.120.8 sets out the general rule that disabilities arising from work related stress are subject to the “unusual strain” doctrine. However, Section 287.120.10 exempts firefighters from this doctrine in cases of psychological stress under Section 287.067. Section 287.067 deals with claims resulting from occupational diseases. The pertinent sections of the statute provide as follows:

1. In this chapter the term “occupational disease” is hereby defined to mean ... an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.
2. An occupational disease is compen-sable if it is clearly work related and meets the requirements of an injury that is compensable as provided in subsections 2 and 3 of section 287.020. An occupational disease is not compensable merely because work was a triggering or precipitating factor.
5. Disease of the lungs or respiratory tract, hypotension, hypertension, or disease of the heart or cardiovascular system, including carcinoma, may be recognized as occupational diseases for the purposes of this chapter and are defined to be disability due to exposure to smoke, gases, carcinogens, inadequate oxygen, or psychological stress of firefighters of a paid fee department if a direct causal relationship is established.

Section 287.067.5 enumerates certain diseases which are normally noncompensable but are compensable for firefighters if they are shown to have been directly caused by a firefighter’s exposure to smoke, gases, carcinogens, inadequate oxygen, or psychological stress.

Here, the ALJ construed Section 287.120.10’s exception too narrowly in concluding the exception for firefighters applied only to Section 287.067.5. Psychological stress is referenced in Section 287.067.5 as a causative factor, not as a separate disease or disability and the diseases specifically mentioned in that section are not an exhaustive list. The exception also includes Section 287.067.1, which defines an occupational disease as one which has its origin in a risk associated with the employment and which “flowed” as a rational consequence from that source, and Section 287.120.2, which states that an occupational disease is compensable if it is work related and meets the requirements of injury under Sections 287.020.2 and .3. Claimant’s PTSD satisfied the requirements of Sections 287.067.1 and .2. Furthermore, Claimant’s performance of his usual and customary duties as a firefighter was a substantial factor in causing his PTSD and exacerbating his depression.

At the hearing, Claimant offered extensive testimony of the specific traumatic events he experienced in his military service and in his career as a firefighter. In addition, Dr. Ohlms testified that the effect of repeated psychological trauma “chipped away at [Claimant’s] strength... .Every day the things that went on in the fire department: injuries, fires, risk, dangers, et cetera, et cetera, all that building up, building up, and building up until he no longer felt he could handle it. He could not face another day doing that.” The Commission found Claimant sustained a relapse of the PTSD he suffered as a result of psychological trauma he sustained during military service in Vietnam. In general, if a claimant can show that the performance of his usual and customary duties leads to a breakdown or change in pathology, the injury is compen-sable. Bennett v. Columbia Health Care, 80 S.W.3d 524, 529 (Mo.App. W.D.2002). The worsening of a preexisting condition is a change in pathology and is a compensa-ble injury. Id.

Here, the ALJ’s denial of benefits because Claimant’s job stresses were not extraordinary and unusual, as compared objectively with other firefighters of equal rank, was erroneous. Reading Sections 287.120.10, 287.067.1 and .2 together, the Commission’s finding that Claimant had established a compensable occupational disease is supported by sufficient competent evidence. Point one is denied.

In its second point, the City argues the Commission erred in interpreting Section 287.120.10 as exempting firefighters from the extraordinary and unusual work stress requirement under Section 287.120.8. The City contends that Section 287.067.5 limits a firefighter’s ability to receive benefits for psychological stress to specific physical maladies, such as a heart attack or hypertension. We disagree.

Here, the ALJ erred by looking only to Section 287.067.5 as the provision that defined psychological stress as an occupational disease. Instead, Claimant established he had an occupational disease under Section 287.067.1 and .2. Claimant’s PTSD was not an ordinary disease to which the general public was exposed outside the course of employment. Furthermore, PTSD “flowed” as a rational consequence of the employment. There was sufficient competent evidence to show that Claimant established he had a compensable occupational disease. Point two is denied.

In its third point, the City argues the Commission erred in finding no Fund liability. We disagree.

The Commission is the ultimate trier of fact and the determination of a specific amount or percentage of disability awarded to a claimant is a finding of a fact within the province of the Commission. Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo.App. W.D.2000). So long as the decision is supported by competent and substantial evidence, we will not disturb the Commission’s findings. Id. Here, the Commission’s decision is supported by substantial and competent evidence that Claimant was a functional employee for many years and that it was his work as a firefighter and the traumas he endured in that capacity that was more likely than not the cause of his permanent and total disability. The Commission properly assessed all liability for Claimant’s permanent total disability against the City. Point three is denied.

Judgment affirmed.

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

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

      . The date of "Accident or Occupational Disease” is listed as September 24, 1997, the date of Claimant’s retirement from the City.

      . Specifically, these are "lung and respiratory disease, high and low blood pressure, and diseases of the heart and circulatory system.” Section 287.067.5.


author: PER CURIAM.

text:
    Amron W. JACKSON, Appellant Pro Se, v. STATE of Missouri, Respondent.
    No. WD 64212.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.
    Application for Transfer Denied May 31, 2005.
    Amron W. Jackson, Jefferson City, MO, pro se.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, PATRICIA BRECKENRIDGE, Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Amron Jackson appeals from the denial of his motion to set aside the judgment denying his Rule 29.15 motion for post-conviction relief. Appellant claims that, as a result of fraudulent acts committed by the State, this judgment should be set aside pursuant to Rule 74.06(b)(5) and Rule 74.05(d). After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. An extended opinion would have no precedential value but a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


author: HAROLD L. LOWENSTEIN, Judge.

text:
    Robert N. OLDS, Appellant Pro Se, v. MISSOURI BOARD OF PROBATION AND PAROLE, et al., Respondent.
    No. WD 63336.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.
    Application for Transfer Denied May 31, 2005.
    Robert N. Olds, Bonne Tere, pro se.
    Lisa J. Berry, Jefferson City, for respondent.
    Before NEWTON, P.J., LOWENSTEIN and HOLLIGER, JJ.
   HAROLD L. LOWENSTEIN, Judge.

Robert Olds, appearing pro se, appeals from the trial court’s dismissal of his “Petition for Declaratory Judgment and Judicial Review” for fading to state a claim. Olds filed the action against the Missouri Board of Probation and Parole, apparently alleging that it denied him parole based on his classification as a dangerous offender. This court dismisses the appeal for failure to comply with Rule 84.04.

I.

Pro se appellants do not receive preferential treatment regarding compliance with the rules of appellate procedure and are held to the same standard as appellants represented by counsel. City of Kansas City v. Piercy, 97 S.W.3d 513, 514 (Mo.App.2002). Failure to comply with these rules constitutes grounds for dismissing the appeal. Id.

As set forth in his brief, Olds’ two points relied on fail to comply with Rule 84.04(d). Rule 84.04(d) governs the proper format that points relied on should appear in an appellant’s brief:

(1) Where the appellate court reviews the decision of a trial court, each point shall:
(A) identify the trial court ruling or action that appellant challenges;
(B) state concisely the legal reasons for the appellant’s claim of reversible error;
(c) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: “The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].”

Olds’ first point on appeal states:

The trial court erred in dismissing appellant’s petition for failure to state a claim upon which relief can be granted under the averments of the petition appellant is entitled to a declaration of rights the trial court not addressing the merits of claims but only the sufficiency of petition sua sponteous.

Here, Olds has merely made a general allegation that the trial court erred in dismissing his petition. However, he fails to explain specifically what supports his claim of reversible error. “Abstract statements of law, standing alone, do not comply with this rule.” Rule 84.04(d)(4).

Similarly, Olds’ second point on appeal is also deficient. The second point states:

The Missouri Board of Probation and Parole erred reclassification of appellant a dangerous offender without legitimate reason ex post facto as guaranteed and protected by Article 1 § 12 Missouri Constitution and United States Constitution ex post facto laws Article 1 § 9 Clause 3 and § 10 Clause 1.

Here, Olds’ second point alleges error committed by the Missouri Board of Probation and Parole. The claim does not even assert error committed by the trial court, thus failing to comply with Rule 84.04(d)(1)(A) requiring appellants to identify the action of the trial court that is being challenged.

Because Olds’ two points relied on do not comply with Rule 84.04, the appeal is dismissed.

All concur.

      . Olds is currently incarcerated for first degree murder, RSMo. § 565.003 (1977), statutory rape, RSMo. § 559.260 (1969), attempted statutory rape, RSMo. §§ 556.150' and 559.260 (1969), and kidnapping, RSMo. § 559.240 (1969).


author: JAMES M. SMART, JR., Judge.

text:
    Weldon RICHARD, Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS and Missouri Department of Natural Resources, Respondent.
    No. WD 63832.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.
    Motion to Transfer to Supreme Court Denied March 29, 2005.
    Application for Transfer Denied May 31, 2005.

      Randy Charles Alberhasky, Springfield, for appellant.
    Peter A. Lyskowski, Jefferson City, for respondent.
    Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.
   JAMES M. SMART, JR., Judge.

Weldon Richard appeals the decision of the Labor and Industrial Relations Commission denying his claim for workers’ compensation. Mr. Richard, who was a prison inmate at the time of his injury, sought compensation for injuries sustained while working on a project for the Department of Natural Resources. The judgment is affirmed.

Statement of Facts

Appellant Weldon Richard was injured in a fall while trimming trees. In July 2001, Mr. Richard filed a claim for compensation for his injuries with the Division of Workers’ Compensation. A hearing before an administrative law judge (ALJ) was held on June 11, 2003, and memoranda and additional evidence were submitted later that month. The evidence was as follows.

At the time of his injury, Mr. Richard was an inmate with the Department of Corrections (DOC), housed at Camp Hawthorn, a DOC facility. Camp Hawthorn is a work camp located on property owned by the Department of Natural Resources (DNR). All work done by Camp Hawthorn inmates is for the DNR. In order to qualify for Camp Hawthorn, inmates must have a history of “adjustment” to corrections facilities, must have little time left to serve, must request to be assigned there, and must sign a document agreeing to work while there. Inmates working out of Camp Hawthorn do not compete with non-inmates for work, and they do not work side-by-side with non-inmate DNR employees doing the same things in the same capacity.

The inmates’ physical custody is transferred to DNR supervisors during the workday until they are returned to the camp in the evening. Throughout, the DOC retains legal custody of the inmates. The DNR supervisors are responsible for instructing the inmates as to how to perform their work, and the inmates are expected to follow their directions in order to remain at Camp Hawthorn. The responsibility for the inmates’ modest pay ($7.50 per day, or about $150.00 per month) is shared by the DOC and the DNR, and the pay is deposited directly into the inmate’s account.

While at Camp Hawthorn, Mr. Richard worked nine to ten hours a day, five days a week — and sometimes on Saturday — in return for wages and the opportunity to live in a somewhat more pleasant and somewhat less restrictive environment. Mr. Richard’s duties in winter included trimming trees and cutting logs. In the summer, he mowed, operated a weed eater, welded, and performed other handyman work.

Mr. Richard’s actual injury occurred off of DOC premises, while he was working in the Lake of the Ozarks State Park, which is owned by the DNR. George Lombardi, the Director of the Division of Adult Institutions, testified that Camp Hawthorn is physically separate from the Lake of the Ozarks State Park and that the Park itself is not a state prison or penitentiary. Nevertheless, inmates housed at Camp Hawthorn are still considered incarcerated for all legal purposes even while they are working off the Camp’s premises, such as at the State Park. They are still under the custody and control of the DOC and are “confined,” in that they are not free to come and go as they please.

The perimeter of Camp Hawthorn is clearly marked with “out of bounds” signs, and the inmates are made aware of those signs and their meaning. According to Mr. Lombardi, an inmate who goes past an out of bounds sign is deemed an escapee, sought as an escapee, and prosecuted as such. Likewise, an inmate working off the Camp’s premises is considered an escapee if he walks away from the job site. Camp Hawthorn conducts a count of inmates several times each day to ensure that all inmates are in custody.

Mr. Richard presented evidence that he is permanently and totally disabled as a result of the accident and post-traumatic spinal stenosis. On July 1, 2003, the ALJ denied Mr. Richard’s claim for compensation on the basis that he was not engaged in employment covered by the Missouri’s Worker’s Compensation Law. The Labor and Industrial Relations Commission (Commission) affirmed the ALJ’s decision on January 22, 2004. Mr. Richard appeals the Commission’s judgment.

Standard of Review

The Missouri Constitution, article V, section 18, provides for judicial review of the Commission’s ruling to determine whether it is authorized by law and is “supported by competent and substantial evidence upon the whole record.” As a general rule, we review the findings of the Commission and not those of the ALJ. Higgins v. Treasurer of State of Mo., 140 S.W.3d 94, 96 (Mo.App.2004). When the Commission affirms or adopts the findings of the ALJ, however, we review the ALJ’s decision and findings as adopted by the Commission. Id. We must affirm the Commission’s final decision unless it acted without or beyond its power, the decision was procured by fraud, the facts found do not support the decision, or the decision is not supported by sufficient competent evidence in the record. § 287.495.1, RSMo 2000. Decisions of the Commission that are clearly interpretations or applications of law, rather than determinations of fact, are reviewed de novo without deference to the Commission’s judgment. Ristau v. DMAPZ, Inc., 130 S.W.3d 602, 604 (Mo.App.2004). The interpretation of a statute is a question of law. Lakin v. Gen. Am. Mut. Holding Co., 55 S.W.3d 499, 503 (Mo.App.2001). This case involves the interpretation of a statute; consequently, our review is de novo.

Point on Appeal

Mr. Richard contends that the Commission erred in finding that he was an inmate “confined in” a state prison at the time of his injury and that he was accordingly specifically excluded from worker’s compensation coverage pursuant to section 287.090.1(3). Mr. Richard claims that at the time of the accident he was not physically “confined” in a state prison facility. Rather, he argues, he was on a “work-release” program that placed him physically outside of the prison and in the Lake of the Ozarks State Park, where he was working for and in the custody of the Department of Natural Resources.

The issue before this court is a question of law, i.e., whether the claimant is exempt from the Missouri Workers’ Compensation Law pursuant to section 287.090.1(3), adopted in 1987. That statute provides, in relevant part, that the Workers’ Compensation Law Chapter shall not apply to:

Employment where the person employed is an inmate confined in a state prison, penitentiary or county or municipal jail ..., and the labor or services of such inmate ... are exclusively on behalf of the state, county or municipality having custody of said inmate.... Nothing in this subdivision is intended to exempt employment where the inmate ... was hired by a state, county or municipal government agency after direct competition with persons who are not inmates ... and the compensation for the position of employment is not contingent upon or affected by the worker’s status as an inmate[.]

§ 287.090.1(3) (emphasis added). Prior to 1987, the Workers’ Compensation Law did not contain a provision specifically exempting prison inmates from, coverage. However, prisoners were not generally considered “employees” for purposes of the workers’ compensation law. See Porter v. Dep’t of Corr., 876 S.W.2d 646, 647-48 (Mo.App.1994) (inmate working as a cook in prison); see also Bowman v. State, 763 S.W.2d 161 (Mo.App.1988) (juvenile in detention injured while working as a trash collector).

Here, the ALJ’s award, which the Commission affirmed and adopted, denied Mr. Richard’s claim because his injury was sustained while he was a prison inmate working exclusively on behalf of the State. The ALJ noted that “[sjection 287.090.1(3) specifically exempts from the provisions of [the] law inmates confined in a state facility working exclusively for the State.” The ALJ concluded that “[t]here is no question regarding Mr. Richard’s status as an inmate, his confinement with the Department of Corrections or his work for a state agency.” The ALJ also determined that the single exception contained within the statute (i.e., where an inmate has obtained work with a state agency after direct competition with a non-inmate and where the inmate’s pay is not affected by his status as an inmate) did not apply in this case. Denying the claim on jurisdictional grounds, the ALJ did not render a decision on any other issues.

Mr. Richard contends that this case turns on the meaning of the phrase “confined in,” which appears in the inmate exemption statute. He observes that no court has interpreted the effect of that language as to a “work-release” inmate since the statutory provision was enacted by the legislature in 1987. In Porter v. Department of Corrections, 876 S.W.2d 646 (Mo.App.1994), this court denied the claim of an inmate who was injured while working as a cook within a prison. Because the prisoner’s injury in that case had occurred prior to the enactment of the inmate exemption provision, the court determined that the provision did not apply. Id. at 647. The court denied the claim on the basis that the prisoner was not an “employee” under the workers’ compensation law. Id. at 648.

Mr. Richard points out that his claim differs from Porter’s because Porter was working within the prison at the time of his accident. Because Mr. Richard was working off the premises of any DOC facility or property when he was injured, he says he was not “confined in a state prison, penitentiary or county or municipal jail,” as required by the statute.

Statutory Construction

The Missouri Workers’ Compensation Law “is entirely a creature of statute.” Simpson v. Saunchegrow Constr., 965 S.W.2d 899, 903 (Mo.App.1998), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 226 (Mo. banc 2003). This court is guided by the general rules of statutory construction in interpreting it. See id. The primary rule of statutory construction is to ascertain the intent of the legislature from the language used and to give effect to that intent if possible. Cook v. Newman, 142 S.W.3d 880, 886 (Mo.App.2004). In determining legislative intent, we construe words and phrases used in the statute in their plain, ordinary, and usual sense. Ristau, 130 S.W.3d at 605. If the language of the statute is unambiguous, we give effect to the language as written and do not resort to rules of statutory construction. Id.

First we consider the plain language of the statute. The word “confine” means: “1. To keep within bounds; restrict. 2. To shut or keep in, especially to imprison.” AmeRican Heritage Dictionary (4th ed.2000). “Imprison” is defined: “[t]o put in or as if in prison; confine.” Id. (emphasis added).

Next we consider the circumstances of Mr. Richard’s confinement. The DOC argues that Mr. Richard was “kept within bounds” while at Camp Hawthorn by “out of bounds” signs clearly indicating the boundaries within which the inmates were “restricted.” Those signs constituted a line that inmates were not permitted to cross without being deemed an escapee from custody and being prosecuted as such. Furthermore, the DOC points out that he was “kept within bounds” while working at the State Park on work release because he was restricted to the job site and was not free to leave. Mr. Richard had very little control over his schedule, meals, or other activities. Just like any other prisoner, Mr. Richard was required to follow restrictive rules and regulations, was required to stay within posted boundaries, and was not free to leave. The DNR employees treated Richard as a prisoner and confinee in that he was required to follow the instructions of his DNR supervisors, could not leave the job site, and was still under the legal custody and control of the DOC. If he had been dismissed from the program, he would have been returned to the main facility.

It appears that the term “work-release,” to the extent it is used to describe the program in which Mr. Richard participated, is somewhat misleading. This was not a program that involved the release of prisoners to the community at large so that they could have regular employment during the day and then return to confinement during them off hours. This was a program that did indeed involve work, but the work was within the confines of DOC activities and restricted state facilities.

Did the General Assembly intend to exclude from workers’ compensation recovery only the injuries of those working within the boundaries of the main prison facility? If so, what principle might have guided the legislature in drawing a distinction between those working within the main facility and those working on other state property? Richard provides no satisfactory answer to that. Whether a prisoner is working as a painter within the main facility or working as a painter on cabins in a state park, we see no principled difference.

There is a difference, however, if an inmate is filling a slot that would otherwise be filled by a regular employee from the community. Should the employer in that case, whether it is the state or a private employer, receive the benefit of not having to pay for workers’ compensation to protect the worker? Should the worker be left unprotected when the employer would have to provide the protection if the worker was not an inmate? It appears likely that the General Assembly intended to distinguish between regular prison workers such as Richard (who worked only with other prisoners, received only the limited wage of $7.50 per day, and did not compete with non-inmates for the position) and any other prisoners on parole or some other special work-release program in which the inmate competes directly with non-inmates for such a position.

Citing 3 LaRSON, Worker’s Compensation Law, § 64.03[4] (2003), Mr. Richard states that “there has been a recent trend toward finding coverage for inmates who are injured outside of the prison walls in a work release program, as was the case herein.” While there may be such a trend, the trend in Missouri stops where the statute stops it. The relationship between the purported employee and employer controls “[a]s long as there is no statute specifically prohibiting the payment of benefits to the prisoner.” Id. (emphasis added). Section 287.090.1(3) is a “statute specifically prohibiting the payment of benefits to prisoners” except for prisoners who are in a true work-release program whereby they are employed in the community.

Richard states that Missouri’s workers’ compensation laws are to be broadly and “liberally construed with a view to the public welfare.” Ristau, 130 S.W.3d at 606; § 287.800. In keeping with that mandate, any ambiguities must be resolved in favor of the employee. Ristau, 130 S.W.3d at 606. We agree. However, after review of the plain and ordinary meaning of the language used in section 287.090.1(3), and after considering the entire context, we find the legislature’s intent to be unambiguous — and it is to exempt from workers’ compensation those prison inmates who are working for the state in a typical prisoner job for which they did not compete with members of the community.

Conclusion

Mr. Richard was a confinee in the legal custody and control of the DOC while incarcerated at Camp Hawthorn, regardless of whether he was working on or off DOC premises. The Law does not provide workers’ compensation for his injury. While we regret the seriousness of Mr. Richard’s injury, we must follow the law as enacted by the General Assembly.

The judgment is affirmed.

ELLIS and HARDWICK, JJ., concur.

      . All statutory references are to Revised Statutes of Missouri unless otherwise noted.

      . The ALJ made no findings with regard to the nature or extent of the injury or disability, the wage rate, or medical bills. Mr. Richard contends in his brief that there is no dispute about the fact that he is permanently and totally disabled. Respondent, however, does dispute the nature and extent of Mr. Richard’s injuries and their cause and effect on his ability to compete in the open labor market.

      . Section 287.800 states:
      All the provisions of this chapter shall be liberally construed with a view to the public welfare, and a substantial compliance therewith shall be sufficient to give effect to the rules, regulations, requirements, awards, orders or decisions of the division and commission, and they shall not be declared inoperative, illegal or void for any omission of a technical nature in respect thereto.


author: ROBERT G. ULRICH, J.

text:
    SYSTEMATIC BUSINESS SERVICES, INC., a Missouri Corporation, et al., Respondents, v. Sean BRATTEN, Appellant.
    No. WD 63777.
    Missouri Court of Appeals, Western District.
    Feb. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.
    Application for Transfer Denied May 31, 2005.

      George A. Barton, Kansas City, MO, for appellant.
    Clifford B. Wood, Kansas City, MO, for respondents.
    Before: VICTOR C. HOWARD, P.J., ROBERT G. ULRICH and PATRICIA A. BRECKENRIDGE, JJ.
   ROBERT G. ULRICH, J.

Sean Bratten appeals the judgment and permanent injunction that enforces the non-compete clause in an employment contract, which he signed on August 28, 2000, as a condition of his employment by Systematic Business Services, Inc. (SBSI). Both SBSI, wholly owned by LabOne, Inc., and LabOne sought and obtained injunc-tive relief that enjoined Mr. Bratten from engaging in the business of “attending physician statement” services (APS), which involves obtaining medical records from medical offices and hospitals relating to individuals who applied for insurance and providing the information to the insurance company clients with whom the applicant has applied for insurance coverage. The injunction precludes Mr. Bratten from engaging in the APS and/or medical records retrieval business for two years from and after July 11, 2003, the date of Mr. Brat-ten’s dismissal from employment with La-bOne for cause and from soliciting, accepting or diverting any APS and/or medical records retrieval business from or of any person or entity that was an APS customer of SBSI and/or LabOne as of July 11, 2003.

The judgment of the trial court granting the injunction is affirmed in part and reversed in part.

Facts

Sean Bratten commenced his employment with SBSI on August 28, 2000, as an expert in the APS business. SBSI conducted an APS business for LabOne, the parent company. SBSI had developed a nationwide APS business with an extensive client list. The APS business requires specialized knowledge and depends significantly upon reputation with insurance companies within the industry. As a condition of his employment, Mr. Bratten signed an employment agreement with SBSI that stated his duties and responsibilities to his employer; stated his compensation; provided a signing bonus of $5,000 to Mr. Bratten, to be paid by La-bOne; contained restrictive covenants applicable both while employed and upon termination of his employment; and included a number of other provisions. The restrictive covenants were articulated in paragraph 8 of the agreement as. a condition of employment and stated:

8. Restrictive Covenants. In consideration for employment with SBSI and in further consideration for the compensation provided for in Paragraph 4 and the post-termination payment, if any, provided for in Paragraph 10, Employee agrees that during the term of employment pursuant to this Employment Agreement, and for a period of two (2) years after the termination for any reason of employment pursuant to this Employment Agreement, Employee will not, without the prior written consent of SBSI, directly or indirectly, individually or in concert with others, or through the medium of any other corporation, partnership, syndicate, officer, director, agent, consultant, partner, member or otherwise:
a. solicit, accept, divert, or service, or attempt to solicit, accept, divert or service, any business similar to the type and character of business then engaged in by SBSI from any person, corporation or other entity who was as of the date of the termination of Employee’s employment a customer of SBSI,
b. solicit, induce or encourage any employee, contractor or agent of SBSI to terminate employment or other relationship with SBSI or to compete with SBSI in any manner, or
c.compete with SBSI in the clinical or insurance laboratory testing business or any other businesses of SBSI at the date of termination of Employee’s employment.
It is understood and agreed that Paragraph 8(c) shall apply only with respect to the following geographic area: All territory in which LabOne or its representatives or agents, as of the date of the termination of Employee’s employment pursuant hereto, sells or offers for sale SBSI’s products or services. (Emphasis added)

Paragraph 4(b) of the agreement states: “Signing bonus. LabOne will pay Employee a hiring bonus of $5,000 payable after the signing of this agreement.” Upon Mr. Bratten’s signing the agreement, LabOne, in accordance with the agreement, paid Mr. Bratten the signing bonus of $5,000.

When Mr. Bratten commenced his employment, he served as Operations Manager in charge of personnel that were conducting the APS retrieval for SBSI. While Operations Manager, for about two years, Mr. Bratten worked at both SBSI’s Independence and Lee’s Summit offices. In addition to supervising APS sales personnel, Mr. Bratten’s duties included speaking to customers when they visited the company or by telephone, making sales trips and calling on clients at their places of business. He also conducted tours for clients and prospective clients that included describing the company’s product. He was the product expert in the APS business for the companies.

In 2002, Mr. Bratten’s position was changed. He was then located at the Lee’s Summit location of SBSI. Because management received several complaints about Mr. Bratten from subordinate employees whom he directly supervised, management eliminated his supervisory duties of APS sales personnel and created the position of Product Manager for him. The companies believed that he related well with clients, but concerns about his professional relationship with company employees resulted in Mr. Bratten being assigned to the Lenexa, Kansas office of LabOne. Although Mr. Bratten reported to a different person as his boss, he continued to assist the companies’ sales people in selling the APS product, and he continued to maintain contact with the companies’ APS clients. When a new client was obtained, for example, Mr. Bratten’s job included engaging in conversations with the client to be certain the client was satisfied and interfacing with the APS department about development matters. From August 2002 until June 26, 2003, Mr. Bratten worked extensively with then current SBSI and LabOne APS customers. SBSI/LabOne had developed a broad nationwide client-base to which the companies sold and continue to sell their APS products, and Mr. Bratten was the principal company contact for all SBSI and La-bOne APS customers. As Operations Manager of the companies’ APS effort and later as Product Manager of the companies’ APS business, Mr. Bratten had access to the entire APS customer list.

Mr. Bratten, while employed by SBSI/LabOne, formed a competing company entitled Allvenner Insurance Services Group in early 2003. He registered his business with the Missouri Secretary of State in February 2003. He also registered the name Allvenner.com. He produced advertising material that stated he had been developing a web-based management system for APS for over two years. He advertised his services as an APS medical records retrieval business. His business advertisement included “underwriting, personal history interviews, MVR’s, criminal background checks, examinations, field investigations, surveillance, credit reporting, prescription history checks, and lab testing.” LabOne provided the same advertised services.

In April 2003, while still employed by SBSI/LabOne, and unknown by his employer, Mr. Bratten engaged in his own competing business as Allvenner. He inquired whether certain SBSI and LabOne employees would be interested in joining his business. Among the SBSI and La-bOne employees that he approached was the development manager of the confidential database and retrieval systems for SBSI/LabOne. Mr. Bratten requested that the employee provide him copies of SBSI/LabOne’s APS database and other confidential and proprietary information for use in his own APS business, Allven-ner. As Allvenner, Mr. Bratten successfully acquired business from a significant insurance company, an APS customer of SBSI/LabOne, and he processed in excess of two hundred orders for the customer in early 2003 while employed by SBSI/La-bOne.

Mr. Bratten’s competitive efforts for All-venner were unknown by his employer on June 26, 2003, when, in accordance with paragraph 11(e) of the employment agreement, Mr. Bratten was informed that he was being terminated without cause effective July 26, 2003. He was told that he would receive a severance payment equivalent to six month’s salary commencing July 26, 2003, in compliance with the provisions of paragraph 11(e) of the employment agreement. After he was informed of his termination but before July 26, 2003, Mr. Bratten solicited business from several additional SBSI/LabOne clients by e-mail. He also sent proposals to SBSI/LabOne clients informing them that they were being “overcharged” by SBSI/LabOne, and as Allvenner, he solicited their business, stating, “[hjere’s what I’ll do for you for any amount of volume to test us versus LabOne.”

A client informed LabOne of Mr. Brat-ten’s efforts, and LabOne sent Mr. Bratten a letter confirming a telephone call made to him by a company representative the same day informing him that his employment was being terminated immediately for cause, and that the provisions referenced in the June 26 letter were “no longer effective.” The letter stated that the “cause” for terminating his employment was the company’s learning of his breach of the restrictive covenants expressed in paragraph 8 of the employment agreement. The letter further stated that the company learned of the breach after it had informed him in its June 26, 2003, letter that it was terminating his employment without cause in accordance with paragraph 11(e) of the agreement. Mr. Brat-ten, although initially denying his involvement with Allvenner, acknowledged that the company was his business, and his employment was terminated for cause on July 11, 2003, in accordance with paragraph 11(d) of the employment agreement. Paragraph 11(d) states: “Termination for cause. Employee’s employment may be involuntary terminated by SBSI at any time for cause. In the event that Employee is involuntarily terminated by SBSI for cause, SBSI shall thereafter have no further liability or obligation hereunder to Employee.”

SBSI and LabOne obtained a temporary restraining order from the trial court on July 24, 2003, directing Mr. Bratten to desist his APS business activities, and later the companies obtained a preliminary injunction following a hearing. The court, in two paragraphs, made permanent its temporary order enjoining Mr. Bratten from “a. engaging in the APS and medical records retrieval business for a period of two years from July 11, 2003, and b. [from] soliciting, accepting or diverting any APS and/or medical records retrieval from or of any person or entity which (sic) was an APS customer of SBSI and/or LabOne as of July 11, 2003.... ” The court effectively enforced the noncompete provisions of the employment contract and SBSI’s invocation of paragraph 11(d) of the employment agreement that the company was not liable to Mr. Bratten for additional compensation under paragraph 11(e). The injunction was entered as the court’s judgment. Mr. Bratten appeals the judgment.

Standard of Review

An action seeking an injunction is an action in equity. The standard of review in a court-tried action in equity is that of a judge tried case: the trial court’s judgment will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); L.B. v. State Comm. of Psychologists, 912 S.W.2d 611, 616 (Mo.App.W.D.1995).

Points on Appeal

Mr. Bratten asserts four points on appeal. He claims as his first point that SBSI breached the August 28, 2000, employment agreement by failing to pay him the severance payment provided for in the agreement because he was terminated without cause from his employment with SBSI in July 2002, when he was transferred from SBSI’s Lee’s Summit office to LabOne’s Lenexa, Kansas office. In his second point, Mr. Bratten claims that the covenant not to compete (paragraph 8 of the employment agreement entitled “Restrictive Covenants”) is not legally enforceable because the geographical area encompassed by it is unrestricted and unreasonably broad and, therefore, the trial court erred by enforcing the restrictive covenant. He claims as his third point that he had insufficient customer contacts and was unable to influence customers of SBSI while employed by the company to justify enforcement of the restrictive covenant, and the trial court, therefore, erred in enforcing the covenant not to compete that restricts his contact with SBSI customers. Finally, Mr. Bratten claims that trial court erred in enforcing the restrictive covenant within the employment agreement because LabOne lacked standing to enforce the restrictive covenants because SBSI and he were the parties to the agreement and LabOne was not a third-party beneficiary of the restrictive covenants.

Point 1: SBSI did not commit a breach of the employment agreement before Mr. Bratten’s employment was terminated on July 11, 2003

Mr. Bratten claims that the trial court erred in enforcing the covenant not to compete expressed by paragraph 8 of the employment agreement because SBSI committed a prior breach of the agreement by failing to pay him $25,500 severance payment as provided in paragraph 11(e), claiming that he was terminated without cause from his employment with SBSI in July 2002, when he was directed to leave SBSI’s Lee’s Summit office and to work from LabOne’s Lenexa, Kansas, office. Thus, effectively, Mr. Bratten asserts that when he was told that he was no longer to supervise personnel at SBSI’s Lee’s Summit office and that he was to perform assigned duties from LabOne’s Lenexa office, his employment with SBSI terminated without cause, he became an employee of LabOne, and paragraph 11(e) of his employment contract with SCSI, which provided for additional compensation, was applicable. The practical effect of Mr. Bratten’s position is that because his employment was terminated in July 2002 when he was directed to report to LabOne’s Lenexa office, the employment agreement that he had signed was terminated and the trial court effectively extended the restrictions imposed on him by the agreement beyond the two years from July 2002 provided in paragraph 8 to two years from July 11, 2003, the date he was informed of his immediate discharge for cause.

Respondents assert that Mr. Bratten’s employment as Product Manager for SBSI was not terminated without cause and that his employment continued, but with La-bOne. Respondents claim they constituted Mr. Bratten’s joint employers, and as such, Mr. Bratten was not terminated in July 2002 but was simply posted to the Lenexa, Kansas, office rather than SCSI’s office in Lee’s Summit to continue working on APS matters for the companies.

Whether two or more employers concurrently employ a worker is occasionally an issue in workers’ compensation cases or in other types of cases where a worker’s entitlement to benefits or the exercise of someone’s legal rights is dependent on the answer. See e.g. Leach v. Bd. of Police Comm’rs of Kansas City, 118 S.W.3d 646, 651 (Mo.App. W.D. 2003)(where police officer was jointly employed by security company and board of police commissioners when killed allowing dependents to collect from Second Injury Fund); Watkins v. Bi-State Dev. Agency, 924 S.W.2d 18, 21 (Mo.App. E.D.1996), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)(where claimant before Labor and Industrial Relations Commission seeking workers’ compensation benefits held an employee of both city and construction company). Joint employment may occur when an employee is doing work for two or more employers. Leach, 118 S.W.3d at 650. The employee’s employers are enjoying the benefit resulting from the employee’s “joint service.” Id. This court in Leach stated, “That the focus should be on service rendered rather than benefit conferred is reiterated in the definition of joint employment. Joint employment occurs when an employee, under contract with two or more employers and under their simultaneous control, performs for each employer services that are the same or closely related.” Id. Under Missouri Workers’ Compensation Law, when determining whether a claimant is a worker employed and entitled to receive benefits under the law, whether the claimed employer had a right to control the means and manner of the service provided by the worker is pivotal when determining the employment relationship. Watkins, 924 S.W.2d at 21.

SBSI and LabOne assert that the August 2000 employment contract signed by Mr. Batten effectively acknowledges his joint employment by both SBSI and La-bOne. The contract makes numerous references to both SBSI and LabOne in their capacity of employer and acknowledges that both companies exercise control over Mr. Bratten’s work. The employment agreement commences by stating that it is an agreement between SBSI, “a subsidiary of LabOne, Inc.” and Mr. Bratten. Paragraph 3 recites Mr. Bratten’s duties and responsibilities. Explicitly stated in the agreement is the provision that Mr. Brat-ten shall perform professional duties as SBSI or the Officers or Board of Directors of LabOne require, and that he shall be loyal to both SBSI and LabOne. The paragraph states:

Employee shall serve as Manager, APS Department, or in such other capacities as SBSI or the Officers or Board of Directors of LabOne may from time to time in their discretion prescribe, shall perform all duties incidental to such positions while held by Employee and shall cooperate fully with the Board of Directors and Officers of LabOne. Employee shall devote his complete loyalty to SBSI and LabOne and all of his business time, attention and energy to the performance of such duties and responsibilities.

Another provision asserted LabOne’s obligation to Mr. Bratten, and another required Mr. Bratten’s commitment of confidentiality regarding not only SBSI’s secrets but also LabOne’s. The $5,000 signing bonus previously referenced in paragraph 4(b) specifically provided that LabOne would pay the sum after Mr. Bratten signed the agreement. LabOne, not SBSI, paid the bonus. Paragraph 7 of the agreement imposed confidentiality restrictions. The restrictions provided that Mr. Bratten would “hold in trust and confidence ... all trade secrets, proprietary information and confidential information ... acquired by [him] concerning La-bOne, Inc. or LabOne of Canada, SBSI, or other affiliates of LabOne[.]”

The employment agreement stated employee/employer responsibilities applicable to Mr. Bratten, SBSI, and LabOne. Mr. Bratten, in paragraph 3, entitled Duties and Responsibilities, agreed that he would serve in such capacities as SBSI or La-bOne would, “in their discretion” determine, and he agreed to cooperate with LabOne, devoting his complete loyalty to both. LabOne paid the signing bonus as the contract provided it would even though it was not a signatory to the agreement. Mr. Bratten pledged confidentiality of SBSI’s and LabOne’s secrets. Mr. Brat-ten continued to work on SBSI’s APS business after his position was redefined, and he was directed to work from LabOne’s Lenexa office. Substantial evidence was presented that Mr. Bratten’s employment was not terminated when his position was modified and he was directed to work on APS business at the LabOne office in Le-nexa, Kansas. The trial court did not err in finding that SBSI did not commit a material breach of contract. Point one is denied.

Points 2 & 3: Mr. Bratten had substantial and continuing contact with SBSI and LabOne APS customers; part b. of the court’s judgment enforcing the non-compete agreement is not impermissibly geographically unrestrictive, but part a. is

Mr. Bratten claims as his second point on appeal that the trial court erred in entering its permanent injunction enforcing the covenant not to compete (subpara-graphs 8(a) and 8(c) of the employment agreement) because the scope of the covenant (and impliedly the court’s judgment) is geographically unrestricted and, therefore, is not legally enforceable as a matter of law. He asserts that the court’s judgment improperly prohibits him from “competing with SBSI in the clinical or insurance laboratory testing business or any other business of SBSI for a period of two years” following July 11, 2003, the date his employment was terminated, and is illegally unrestricted geographically.

Paragraph a. of the court’s judgment precludes Mr. Bratten, and others acting in his behalf, from “engaging in the APS and/or medical records retrieval business for a period of two years from and after July 11, 2003.” Paragraph b. precludes Mr. Bratten from “soliciting, accepting or diverting any APS and/or medical records retrieval business from or of any person or entity which was an APS customer of SBSI and/or LabOne as of July 11, 2003, which shall include the persons and entities on [SBSI and LabOne’s list of APS customers].”

Temporary and spatially limited restrictive covenants not to compete that protect an employer’s legitimate protecta-ble interests from unfair competition by a former employee and that do not impose unreasonable restraints on the employee are enforceable. AEE-EMF, Inc. v. Passmore, 906 S.W.2d 714, 719 (Mo.App. W.D.1995). Two legitimate “protectable interests” recognized by Missouri courts are customer contacts and trade secrets. Id. Whether the restrictive covenant’s restraints are reasonable is determined by considering “all attending circumstances and [whether] enforcement serves the employer’s legitimate interests.” Id. A restrictive covenant that limits a party’s pursuit of an occupation is in restraint of trade, and, in addition to protecting the employer’s legitimate interests, the covenant must also be reasonable as to time and space to be enforceable. Id. (citing Osage Glass, Inc. v. Donovan, 693 S.W.2d 71, 73-74 (Mo. banc 1985)). An employer cannot extract a restrictive covenant from an employee merely to protect itself from competition, but a limited time and geographical restraint may be deemed reasonable and enforceable if the employer’s legitimate protectible interests, such as “stock of customers” and the company’s goodwill, are served. Steamatic of Kansas City, Inc. v. Rhea, 763 S.W.2d 190, 192 (Mo.App. W.D.1988). Protection of a former employer’s legitimate business interests and not punishment of the former employee is the essence of the law. AEE-EMF, 906 S.W.2d at 720. “The standard for determining the reasonableness of the geographic scope of a restrictive covenant is whether it is no greater than fairly required for protection.” Schott v. Beussink, 950 S.W.2d 621 (Mo.App. E.D.1997). Noncompetition agreements are not favored in the law, and the party attempting to enforce a noncompetition agreement has the burden of demonstrating both the necessity to protect the claimant’s legitimate interests and that the agreement is reasonable as to time and space. AEE-EMF, 906 S.W.2d at 719.

The instant case is similar to Schott v. Beussink, 950 S.W.2d 621 (Mo.App. E.D.1997). In Schott, partners in an accounting firm appealed the trial court’s denial of their petition to enforce the restrictive covenant precluding former employees from soliciting employer’s clients for two years following termination of employees’ employment with employer. The trial court determined that the covenant, which prevented employees from performing accounting services for employer’s clients whom employees served while employer’s employees, was unenforceable because the covenant lacked spatial (geographical) limitations. The Eastern District distinguished two cases in which the restrictive covenants were not enforced because they prevented employees from competing with their former employers for two years after termination of employment without limitation to a stated area. The Supreme Court in National Motor Club of Mo., Inc. v. Noe, 475 S.W.2d 16, 22 (Mo.1972), found unenforceable the restrictive covenant at issue because it was not reasonably restricted to any geographic area. The Court also noted that the covenant did not reasonably limit the prohibited competition. The Southern District in Prentice v. Williams, 324 S.W.2d 466, 470 (Mo.App.S.D.1959), found the first of two restrictive covenants considered in the case, which limited the employee’s occupation post employment as to time but not geographic area, unenforceable.

Noting that the courts in Noe and Prentice did not specifically hold that a restrictive covenant is unenforceable just because it lacks geographical or spatial limitations, the court in Schott recognized that the former employee accountants were restricted from soliciting their former employer’s clients with whom they had done business during the fifteen-month period preceding the termination of their employment contracts. Schott, 950 S.W.2d at 626-27. Significant was the fact, that the restriction did not universally deny the former employees the opportunity to engage in the practice of accounting. Id. at 626. The court stated, “[A]lthough not stated in express geographical terms, the limitation of the restrictive covenant applies to employer’s clients with whom the employer had done business during the fifteen-month period preceding the termination of the contracts.” Id. at 626-27. Thus, the court concluded that the absence of geographical limitation in the restrictive covenant being considered did not render it void. Quoting from Seach v. Richards, Dieterle & Co., 439 N.E.2d 208, 213 (Ind.App.1982), the court said, “[A]s the specificity of limitation regarding the class of person with whom contact is prohibited increases, the need for limitation expressed in territorial terns decreases.” Id. at 627.

Like Schott, the restrictions in this case are not stated in geographical terms. The lack of a territorial limitation does not render the restrictions unenforceable, however, because the restrictions preclude Mr. Bratten from soliciting business from SBSI customers. Mr. Bratten asserts as point three that he had limited contact with customers while employed by Respondents and was not in a position to influence relevant contact persons located at SBSI’s customers. He, therefore, claims by implication that the courts’ injunction and final judgment precluding him from soliciting Respondents’ APS customers is impermissibly restrictive.

Mr. Bratten acknowledges that “the rationale for protecting ‘customer contacts’ is that, in the sales industry, a customer’s goodwill toward a company is often attached to the employer’s individual sales representative, and the employer’s product or service becomes associated in the customer’s mind with that representative.” Easy Returns Midwest, Inc. v. Schultz, 964 S.W.2d 450, 453 (Mo.App.E.D.1998). “The sales employee is thus placed in a position to exert a special influence over the customer and entice that customer’s business away from the employer.” Id. “Because it is this special influence that justifies enforcement of non-compete covenants, the quality, frequency and duration of employee’s exposure to the customers is of crucial importance in determining the reasonableness of the restriction.” Id.

Also affecting employer customer contacts is the employer’s customer list. Customer contacts are a protectable commodity of a former employer, and a former employer attempting to enforce an express restrictive covenant need not show that the customer list is secret. AEE-EMF, 906 S.W.2d at 720. Customer contacts are a protectable commodity because goodwill develops between the customers and the employer through its employees whose job it is to meet and converse with the customer while representing the employer. Id. The resulting goodwill is essential to the employer’s success and is a reason that the employee is remunerated. Id. Sales result from the goodwill that develops. The employer, therefore, has a protectable right in both customers and goodwill. Id. The former employer need not show actual damages to enforce the covenant if the covenant is lawful and the opportunity to influence employer’s customers exists. Id.

The trial court made specific findings that are applicable to Mr. Bratten’s second and third points, each of which is supported by substantial evidence. LabOne engages in the APS business through its subsidiary SBSI, and SBSI’s and LabOne’s APS customers are the same. Mr. Brat-ten had substantial and ongoing contact with SBSI’s APS customers when employed by Respondents, including many of its largest APS customers. Mr. Bratten became thoroughly knowledgeable about SBSI’s and LabOne’s APS business and computer systems used to process APS business, and these systems were developed in-house by LabOne and SBSI and are proprietary. While employed by Respondents, and in breach of the restrictive covenant (paragraph 8), Mr. Bratten began establishing his own APS business (Allven-ner Insurance Services Group); met, through his employment, a SBSI and La-bOne insurance company customer; and, as Allvenner, actively engaged in APS business with it. Between mid-April 2008, and the July 2003 termination of his employment with Respondents for cause, Mr. Bratten, acting in his own interests as competitor Allvenner while still employed by Respondents, processed over 200 APS orders for the customer. Contrary to Mr. Bratten’s claim, he had substantial and significant contact with Respondents’ customers and demonstrated by his conduct in soliciting and acquiring APS business from at least one of Respondents’ customers that he was in position to influence decision makers located at Respondents’ customers.

The interests that SBSI and LabOne are attempting to protect by application of the restrictive covenants and the interests the court protects in paragraph b. of its judgment are legitimate protectable interests. Paragraph 8(a) of the employment agreement constrains Mr. Bratten from soliciting, accepting, diverting, or servicing, or attempting to do so, entities that were customers of SBSI on July 11, 2003, when Mr. Bratten was discharged for cause. Mr. Bratten’s employment permitted him to access Respondents’ APS customer list, and the evidence reflects that he used this information to commence and operate his own APS business as Allvenner while employed by Respondents in contravention of paragraph 8 of the agreement. The restrictions expressed in paragraph b. of the court’s judgment are limited to two years as expressed by paragraph 8 of the employment agreement and implied by paragraph a. of the court’s judgment, and Mr. Bratten does not claim that the two year tenure of the restriction is excessive. The restrictions expressed in paragraph b. of the judgment are, therefore, reasonable as to time and space, and are not punishment for Mr. Bratten’s misconduct.

The restrictions expressed in paragraph a. of the court’s judgment preclude Mr. Bratten from engaging in the APS and/or medical records retrieval business for a period of two years from and after July 11, 2003, without restriction. Thus, the prohibition prevents Mr. Bratten from engaging in such business anywhere for two years. Paragraph a. of the court’s judgment is, therefore, universal and without geographic limitation and is too broad and unrestricted. Paragraph a. of the trial court’s judgment is, therefore, stricken. The points are granted in part and denied in part.

Point 4: SBSI had standing to seek enforcement of the restrictive covenants, and whether LabOne had standing need not be considered

Mr. Bratten claims as his final point that the trial court erred in enforcing the restrictive covenant within the employment agreement because LabOne lacked standing to enforce the restrictive covenants for the reason that SBSI and he were the parties to the agreement, and LabOne was not a third-party beneficiary. Both SBSI and LabOne filed suit as plaintiffs. Whether LabOne had standing to sue need not be addressed because SBSI had standing as a party to enforce the provisions of the agreement that benefit LabOne. Mr. Bratten’s final point need not be addressed. The point is denied.

The court’s judgment is affirmed in part and reversed in part in accordance with this opinion.

HOWARD, P.J. and BRECKENRIDGE, J. concur.

      . SBSI and LabOne’s customer list as of July 11, 2003, was introduced as Exhibit 27 and is referenced in the court’s Permanent Injunction and Final Judgment.

      . The trial court found that applying restrictive covenants to accountants violates public policy. The Eastern District rejected the trial court’s finding and recognized that an employer has a "proprietary right in its stock of customers and their good will, and if the covenant is otherwise reasonable, the court will protect the asset against appropriation by an employee.” Schott, 950 S.W.2d at 625. The appellate court found that the trial court erred when it found that restrictive covenants between accountants are unenforceable because of public policy. Id.


text:
    STATE of Missouri, Respondent, v. Antonio ELMORE, Appellant.
    No. WD 63545.
    Missouri Court of Appeals, Western District.
    Feb. 8, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.
    Application for Transfer Denied May 31, 2005.
    Elizabeth U. Carlyle, Lee’s Summit, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Antonio Elmore appeals his conviction following a jury trial for the Class B felony of delivery of a controlled substance in accordance with section 195.211 RSMo and his sentence of eight years imprisonment.

For reasons stated in the Memorandum provided to the parties, the judgment is affirmed. Rule 30.25(b).